68180 Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices 

Sherman County 

Loup City Township Carnegie Library, 

(Carnegie Libraries in Nebraska MPS), 652 

N St., Loup City, 07001326. 

Wayne County 

Wayne United States Post Office, 120 Pearl 

St., Wayne, 07001325. 

PENNSYLVANIA 

Allegheny County 

Try Street Terminal, 600–620 2nd Ave., 

Pittsburgh, 07001327. 

Philadelphia County 

Budd, Edward G., Manufacturing Company, 

2450 W. Hunting Park Rd., Philadelphia, 

07001328. 

WISCONSIN 

Grant County 

Boscobel Grand Army of the Republic Hall, 

102 Mary St., Boscobel, 07001329. 

Jackson County 

Black River Falls Public Library, (Public 

Library Facilities of Wisconsin MPS), 321 

Main St., Black River Falls, 07001330. 

Milwaukee County 

Spencerian Business College, 2800 W. Wright 

St., Milwaukee, 07001331. 

A request for REMOVAL has been made for 

the following resource: 

COLORADO 

Denver County 

Beierle Farm, (Denver International Airport 

MPS), Hudson Rd. just N. of Irondale Rd. 

Watkins, 92001673. 

A request to MOVE has been made for the 

following resource: 

OREGON 

Multnomah County 

U.S.S. LCI–713 (Landing craft), 1401 N. 

Hayden Island Dr., Portland, 070003000. 

[FR Doc. E7–23423 Filed 12–3–07; 8:45 am] 

BILLING CODE 4310–70–P 

DEPARTMENT OF JUSTICE 

ANTITRUST DIVISION 

United States v. Vulcan Materials Co., 

et al. Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment and Competitive Impact 

Statement have been filed with the 

United States District Court for the 

District of Columbia in United States v. 

Vulcan Materials Co., et al., Civil Action 

No. 1:07–cv–2044. On November 13, 

2007, the United States filed a 

Complaint to obtain equitable and other 

relief against defendants Vulcan 

Materials Company (‘‘Vulcan’’) and 

Florida Rock Industries, Inc. (‘‘Florida 

Rock’’) to prevent Vulcan’s proposed 

acquisition of Florida Rock. The 

Complaint alleges that Vulcan’s 

acquisition of Florida Rock would 

substantially lessen competition in the 

production, distribution, and sale of 

coarse aggregate in and around Atlanta, 

Georgia; Columbus, Georgia; 

Chattanooga, Tennessee; and South 

Hampton Roads, Virginia, in violation of 

Section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18. The proposed 

Final Judgment, filed on November 13, 

2007, requires defendants to divest 

Florida Rock aggregate quarries in 

Northwest, West, and Southwest 

Atlanta, Georgia; Columbus, Georgia; 

Chattanooga, Tennessee; and Richmond, 

Virginia. In addition, defendants must 

divest a Florida Rock distribution yard 

located in Chesapeake, Virginia that 

receives coarse aggregate by barge from 

Florida Rock’s Richmond quarry; a 

Vulcan aggregate quarry in South 

Atlanta, Georgia; and a Vulcan quarry 

under development in Southeast 

Atlanta, Georgia. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

325 7th Street, NW., Room 215, 

Washington, DC 20530 (telephone: 202–

514–2481), on the Department of 

Justice’s Web site at http:// 

www.usdoj.gov/atr, and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia, 

Washington, DC. Copies of these 

materials may be obtained from the 

Antitrust Division upon request and 

payment of a copying fee set by 

Department of Justice regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to Maribeth Petrizzi, 

Chief, Litigation II Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 3000, 

Washington, DC 20530 (telephone: 202–

307–0924). 

Patricia A. Brink, 

Deputy Director of Operations, Antitrust 

Division. 

United States District Court for the 

District of Columbia 

United States of America, Department of 

Justice, Antitrust Division, 1401 H Street, 

NW., Suite 3000, Washington, DC 20530, 

Plaintiff, v. Vulcan Materials Company, 1200 

Urban Center Drive, Birmingham, AL 35242, 

and Florida Rock Industries, Inc., 155 East 

21st Street, Jacksonville, FL 32206, 

Defendants. 

Case: 1:07–cv–02044 

Assigned To: Sullivan, Emmet G. 

Assign. Date: 11/13/2007 

Description: Antitrust 

Deck Type: Antitrust 

Date Stamp: 

Complaint 

Plaintiff United States of America 

(‘‘United States’’), acting under the 

direction of the Acting Attorney General 

of the United States, brings this civil 

antitrust action to obtain equitable and 

other relief against defendants Vulcan 

Materials Company (‘‘Vulcan’’) and 

Florida Rock Industries, Inc. (‘‘Florida 

Rock’’) to prevent Vulcan’s proposed 

acquisition of Florida Rock. Plaintiff 

complains and alleges as follows: 

I. Nature of the Action 

1. On February 19, 2007, Vulcan and 

Florida Rock signed a definitive 

agreement for Vulcan to acquire Florida 

Rock in a cash-and-stock transaction 

valued at approximately $4.6 billion. 

The total blended cash-and-stock 

consideration for this transaction is 

approximately $68 per share. 

2. Vulcan and Florida Rock both 

produce and distribute in the United 

States building materials, including, 

among other things, construction 

aggregates (which includes coarse 

aggregate) and ready mix concrete. 

Vulcan is the largest supplier of 

construction aggregates in the United 

States. Florida Rock is also a leading 

supplier of construction aggregates in 

the United States. Combined, Vulcan 

and Florida Rock will have construction 

aggregates reserves totaling 

approximately 13.9 billion tons. 

3. The United States brings this action 

to prevent the proposed acquisition of 

Florida Rock by Vulcan because it 

would substantially lessen competition 

in the production, distribution, and sale 

of coarse aggregate in and around 

Atlanta, Georgia; Columbus, Georgia; 

Chattanooga, Tennessee; and South 

Hampton Roads, Virginia, in violation of 

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

18. 

II. Parties to the Proposed Transaction 

4. Defendant Vulcan is a New Jersey 

corporation with its principal place of 

business in Birmingham, Alabama. 

Vulcan produces, distributes, and sells, 

among other products, construction 

aggregates, ready mix concrete, hot mix 

asphalt, and asphalt coating to 

customers in 21 states, the District of 

Columbia, and Mexico. 

5. Vulcan is the largest producer of 

construction aggregates in the United 

States. It has over 300 facilities for the 

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production and distribution of 

construction aggregates and other 

products. In 2006, Vulcan shipped 

approximately 255 million tons of 

construction aggregates, the majority of 

which was coarse aggregate. In 2006, 

Vulcan reported total sales of 

approximately $3 billion. 

6. Defendant Florida Rock is a Florida 

corporation with its principal place of 

business in Jacksonville, Florida. 

Florida Rock produces, distributes, and 

sells in the Southeastern and midAtlantic states, among other products, 

construction aggregates, ready mix 

concrete, prestressed concrete, and 

cement. 

7. Florida Rock is one of the largest 

United States suppliers of construction 

aggregates. In 2006, Florida Rock 

shipped approximately 45 million tons 

of construction aggregates, the majority 

of which was coarse aggregate. In 2006, 

Florida Rock reported total sales of 

approximately $1.4 billion. 

III. Jurisdiction and Venue 

8. Plaintiff United States brings this 

action under Section 15 of the Clayton 

Act, as amended, 15 U.S.C. 25, to 

prevent and restrain defendants from 

violating Section 7 of the Clayton Act, 

15 U.S.C. 18. 

9. Defendants produce, distribute, and 

sell coarse aggregate and other products 

in the flow of interstate commerce. 

Defendants’ activities in producing, 

distributing, and seIling these products 

substantially affect interstate commerce. 

This Court has subject matter 

jurisdiction over this action pursuant to 

Section 12 of the Clayton Act, 15 U.S.C. 

22, and 28 U.S.C. 1331, 1337(a), and 

1345. 

10. Defendants have consented to 

venue and personal jurisdiction in this 

judicial district. 

IV. Trade and Commerce 

A. The Relevant Product Market 

11. Construction aggregates consist 

primarily of crushed stone, gravel, and 

sand produced from natural deposits of 

various materials and removed from 

quarries, mines, or pits. 

12. Coarse aggregate is a type of 

construction aggregate. Coarse aggregate 

is crushed stone produced at quarries or 

mines and used for, among other things, 

road base and the production of ready 

mix concrete and asphalt. Coarse 

aggregate typically is mixed with other 

materials to produce ready mix concrete 

and asphalt. Different sizes of coarse 

aggregate are needed to meet different 

project specifications. 

13. There are no reliable substitutes 

for coarse aggregate because it differs 

from other products in its physical 

composition, functional characteristics, 

customary uses, consistent availability, 

and pricing. To the extent that any 

substitutes exist, customers already use 

these to the full extent possible in light 

of the limits on their availability and the 

amounts that can be used in a given 

product, and could not use more of 

them in place of coarse aggregate in 

response to an increase in the price of 

coarse aggregate. 

14. A small but significant postacquisition increase in the price of 

coarse aggregate would not cause the 

purchasers of coarse aggregate to 

substitute another product or otherwise 

reduce their usage of coarse aggregate in 

sufficient quantities so as to make such 

a price increase unprofitable. 

15. Accordingly, the production, 

distribution, and sale of coarse aggregate 

is a line of commerce and a relevant 

product market within the meaning of 

Section 7 of the Clayton Act. 

B. The Relevant Geographic Markets 

16. Coarse aggregate is a bulky, heavy, 

and relatively low-value product. The 

cost of transporting coarse aggregate is 

high compared to the value of the 

product. 

17. Transportation costs limit the 

distance coarse aggregate can be 

economically transported from a quarry 

or mine to a job site or a ready mix 

concrete or asphalt plant. The 

geographic area within which a coarse 

aggregate supplier can compete most 

vigorously thus is limited by the cost of 

hauling the coarse aggregate. As a result, 

the competitiveness of a coarse 

aggregate supplier in a given area is 

limited by its distance from customer 

plants or project sites relative to other 

suppliers. 

18. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Cedarton, Georgia, known as the Six 

Mile quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Floyd, Polk, 

Haralson, and Bartow Counties in 

Georgia (hereafter referred to as 

‘‘Northwest Atlanta’’). Customers with 

plants or jobs within Northwest Atlanta 

may, depending on the location of their 

plant or job sites, also economically 

procure coarse aggregate from Vulcan’s 

Adairsville, Bartow, and Rockmart 

quarries and from another competitor’s 

quarry located in Cartersville, Georgia. 

Other quarries cannot on a regular basis 

compete successfully for customers with 

plants or jobs in Northwest Atlanta 

because they are too far away and the 

hauling costs are too great. 

19. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in Northwest Atlanta 

would not cause those customers to 

procure coarse aggregate from quarries 

farther away than those identified in 

paragraph 18 in sufficient quantities so 

as to make such a price increase 

unprofitable. 

20. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Yorkville, Georgia, known as the 

Paulding quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Paulding, 

Douglas, Carroll, Haralson, Polk, and 

Cobb Counties in Georgia (hereafter 

referred to as ‘‘West Atlanta’’). 

Customers with plants or jobs within 

West Atlanta may, depending on the 

location of their plant or job sites, also 

economically procure coarse aggregate 

from Vulcan’s Villa Rica, Kennesaw, 

and Lithia Springs quarries and from the 

quarries of other competitors located in 

Dallas, Georgia, and Douglasville, 

Georgia. Other quarries cannot on a 

regular basis compete successfully for 

customers with plants or jobs in West 

Atlanta because they are too far away 

and the hauling costs are too great. 

21. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in West Atlanta would not 

cause those customers to procure coarse 

aggregate from quarries farther away 

than those identified in paragraph 20 in 

sufficient quantities so as to make such 

a price increase unprofitable. 

22. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Tyrone, Georgia, known as the Tyrone 

quarry. This quarry serves a geographic 

area that includes, among other areas, 

all or part of Fulton, Coweta, Fayette, 

and Clayton Counties in Georgia 

(hereafter referred to as ‘‘Southwest 

Atlanta’’). Customers with plants or jobs 

within Southwest Atlanta may, 

depending on the location of their plant 

or job sites, also economically procure 

coarse aggregate from Vulcan’s Madras 

quarry and from another competitor’s 

quarry located in Tyrone, Georgia. Other 

quarries cannot on a regular basis 

compete successfully for customers with 

plants or jobs in Southwest Atlanta 

because they are too far away and the 

hauling costs are too great. 

23. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in Southwest Atlanta 

would not cause those customers to 

procure coarse aggregate from quarries 

farther away than those identified in 

paragraph 22 in sufficient quantities so 

as to make such a price increase 

unprofitable. 

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68182 Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices 

24. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Riverdale, Georgia, known as the Forest 

Park quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Fulton, 

Clayton, Henry, DeKalb, and Fayette 

Counties in Georgia (hereafter referred 

to as ‘‘South Atlanta’’). Customers with 

plants or jobs within South Atlanta may, 

depending on the location of their plant 

or job sites, also economically procure 

coarse aggregate from Vulcan’s Red Oak 

quarry and from another competitor’s 

quarry located in College Park, Georgia. 

Other quarries cannot on a regular basis 

compete successfully for customers with 

plants or jobs in South Atlanta because 

they are too far away and the hauling 

costs are too great. 

25. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in South Atlanta would 

not cause those customers to procure 

coarse aggregate from quarries farther 

away than those identified in paragraph 

24 in sufficient quantities so as to make 

such a price increase unprofitable. 

26. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Zotella, Georgia, known as the Griffin 

quarry. This quarry serves a geographic 

area that includes, among other areas, 

all or part of Spalding and Henry 

Counties in Georgia (hereafter referred 

to as ‘‘Southeast Atlanta’’). Customers 

with plants or jobs within Southeast 

Atlanta may, depending on the location 

of their plant or job sites, also 

economically procure coarse aggregate 

from Vulcan’s Stockbridge quarry. In 

addition, Vulcan is in the process of 

opening a new quarry in Butts County, 

Georgia, expected to be operational in 

2008, from which it plans to serve, 

among other areas, customers in all or 

part of Southeast Atlanta. Other quarries 

cannot on a regular basis compete 

successfully for customers with plants 

or jobs in Southeast Atlanta because 

they are too far away and the hauling 

costs are too great. 

27. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in Southeast Atlanta 

would not cause those customers to 

procure coarse aggregate from quarries 

farther away than those identified in 

paragraph 26 in sufficient quantities so 

as to make such a price increase 

unprofitable. 

28. Florida Rock owns a majority 

interest in a company that owns and 

operates a coarse aggregate quarry 

located in Columbus, Georgia, known as 

the Columbus quarry. This quarry serves 

a geographic area that includes, among 

other areas, all or part of Muscogee and 

Harris Counties in Georgia (hereafter 

referred to as ‘‘Columbus’’). Customers 

with plants or jobs within Columbus 

may, depending on the location of their 

plant or job sites, also economically 

procure coarse aggregate from Vulcan’s 

Barin quarry and from another 

competitor’s quarry located in Midland, 

Georgia. Other quarries cannot on a 

regular basis compete successfully for 

customers with plants or jobs in 

Columbus because they are too far away 

and the hauling costs are too great. 

29. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in Columbus would not 

cause those customers to procure coarse 

aggregate from quarries farther away 

than those identified in paragraph 28 in 

sufficient quantities so as to make such 

a price increase unprofitable. 

30. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Chattanooga, Tennessee, known as the 

Jersey Pike quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Hamilton 

County in Tennessee (hereafter referred 

to as ‘‘Chattanooga’’). Customers with 

plants or jobs within Chattanooga may, 

depending on the location of their plant 

or job sites, also economically procure 

coarse aggregate from Vulcan’s 

Chattanooga quarry and from another 

competitor’s quarries located in 

Chattanooga and Ringgold, Georgia. 

Other quarries cannot on a regular basis 

compete successfully for customers with 

plants or jobs in Chattanooga because 

they are too far away and the hauling 

costs are too great. 

31. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in Chattanooga would not 

cause those customers to procure coarse 

aggregate from quarries farther away 

than those identified in paragraph 30 in 

sufficient quantities so as to make such 

a price increase unprofitable. 

32. Florida Rock owns and operates a 

coarse aggregate quarry located in 

Richmond, Virginia, known as the 

Richmond quarry, a coarse aggregate 

quarry located in Havre de Grace, 

Maryland, known as the Havre de Grace 

quarry, and a barge-served distribution 

yard located in Chesapeake, Virginia, 

known as the Gilmerton yard. Florida 

Rock also operates a distribution yard 

owned by a third party located in 

Chesapeake, Virginia. Via these 

distribution yards, Florida Rock serves a 

geographic area that includes, among 

other areas, all or part of the cities of 

Norfolk, Suffolk, Portsmouth, 

Chesapeake, and Virginia Beach in 

Virginia (hereafter referred to as ‘‘South 

Hampton Roads’’). Customers with 

plants or jobs within South Hampton 

Roads may, depending on the location 

of their plant or job sites, also 

economically procure coarse aggregate 

from Vulcan rail and barge terminals 

supplied by Vulcan’s Richmond, 

Lawrenceville, and Skippers quarries. 

Other quarries cannot on a regular basis 

compete successfully for customers with 

plants or jobs in South Hampton Roads 

because they do not have appropriate 

distribution facilities in the area and/or 

quarries similarly proximate to rail lines 

or navigable water sources. 

33. A small but significant postacquisition increase in the price of 

coarse aggregate to customers with 

plants or jobs in South Hampton Roads 

would not cause those customers to 

procure coarse aggregate from quarries 

farther away than those identified in 

paragraph 32 in sufficient quantities so 

as to make such a price increase 

unprofitable. 

34. Accordingly, the relevant 

geographic markets, within the meaning 

of Section of the Clayton Act, are 

locations of coarse aggregate customers 

in: Northwest Atlanta, West Atlanta, 

Southwest Atlanta, South Atlanta, 

Southeast Atlanta, Columbus, 

Chattanooga, and South Hampton 

Roads. 

C. Anticompetitive Effects 

1. The Proposed Transaction Will Harm 

Competition in the Markets for Coarse 

Aggregate in the Relevant Geographic 

Markets 

35. Price competition between Vulcan 

and Florida Rock in the production, 

distribution, and sale of coarse aggregate 

has benefited customers. 

36. In Southeast Atlanta and South 

Hampton Roads, the proposed 

acquisition will eliminate the 

competition between Vulcan and 

Florida Rock and reduce the number of 

suppliers of many specifications of 

coarse aggregate from two to one. In 

Southeast Atlanta, the acquisition will 

also eliminate the competition between 

Florida Rock and Vulcan that would 

result from the opening of Vulcan’s new 

quarry in Butts County. 

37. In Northwest Atlanta, Southwest 

Atlanta, South Atlanta, Columbus, and 

Chattanooga, the proposed acquisition 

will eliminate the competition between 

Vulcan and Florida Rock and reduce the 

number of coarse aggregate suppliers 

from three to two generally, and for 

some customers and projects from two 

to one. 

38. In West Atlanta, the proposed 

acquisition will eliminate the 

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Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices 68183 

competition between Vulcan and 

Florida Rock and reduce the number of 

coarse aggregate suppliers from four to 

three generally, and for some customers 

and projects from three to two. 

39. The proposed acquisition will 

substantially increase the likelihood 

that Vulcan will unilaterally increase 

the price of coarse aggregate to a 

significant number of customers in 

Northwest Atlanta, West Atlanta, 

Southwest Atlanta, South Atlanta, 

Southeast Atlanta, Columbus, 

Chattanooga, and South Hampton 

Roads. 

40. The response of other coarse 

aggregate suppliers in the relevant 

geographic markets would not be 

sufficient to constrain a unilateral 

exercise of market power by Vulcan 

after the acquisition because those 

suppliers likely would not have 

sufficient capacity and/or incentives to 

increase production and sales enough to 

defeat an anticompetitive price increase 

by Vulcan. State permits and county 

zoning restrictions in many cases limit 

quarries’ hours of operation and/or 

production levels, and many coarse 

aggregate suppliers face practical 

limitations on the amount of truck 

traffic their facilities can handle. 

Moreover, because coarse aggregate 

mined from quarries is a depletable 

natural resource and every quarry has 

finite reserves, every sale by a supplier 

today represents a tradeoff against 

future sales. 

41. In addition, and notwithstanding 

competitor responses, post-merger 

Vulcan will be able to increase prices to 

those customers that have plants or job 

sites for which both a Vulcan quarry 

and a Florida Rock quarry are closer 

than any other quarries producing 

coarse aggregate meeting their 

specifications. Coarse aggregate 

suppliers know the locations of their 

competitors’ quarries and the distance 

from their own quarries and their 

competitors’ quarries to a customer’s 

plant or job site. Generally, because of 

transportation costs, the farther a 

supplier’s closest competitor is from a 

job site, the less price competition that 

supplier faces for that project. Postacquisition, in instances where Vulcan 

and Florida Rock quarries would be the 

closest quarries to a customer’s plant or 

project and the next closest coarse 

aggregate supplier’s plant is farther from 

the customer’s plant or project, the 

combined firm, using the knowledge of 

its competitors’ quarry locations, would 

be able to charge such customers higher 

prices. 

42. Without the constraint of 

competition between Vulcan and 

Florida Rock, the combined firm will 

have a greater ability to exercise market 

power by raising prices to customers for 

whom Vulcan or Florida Rock were 

sources of coarse aggregate. 

43. In addition, Vulcan’s elimination 

of Florida Rock as an independent 

competitor in the production, 

distribution, and sale of coarse aggregate 

is likely to facilitate anticompetitive 

coordination among the remaining 

coarse aggregate suppliers in Northwest 

Atlanta, West Atlanta, Southwest 

Atlanta, South Atlanta, Columbus, and 

Chattanooga. Coarse aggregate is 

homogeneous and suppliers have access 

to information about competitors’

output, capacity, and costs. Given these 

market conditions, eliminating one of 

the few coarse aggregate competitors is 

likely to further increase the ability of 

the remaining competitors to coordinate 

successfully. 

44. The transaction therefore will 

substantially lessen competition in the 

production, distribution, and sale of 

coarse aggregate in the relevant 

geographic markets. This is likely to 

lead to higher prices for the ultimate 

consumers of coarse aggregate, in 

violation of Section 7 of the Clayton 

Act. 

2. Entry Is Not Likely To Deter the 

Exercise of Market Power 

45. Timely and successful entry into 

the production, distribution, and sale of 

coarse aggregate is unlikely in the 

relevant geographic areas. 

46. Securing the proper site for a 

coarse aggregate quarry or mine is 

difficult, time-consuming, and costly. It 

requires the investigation and extensive 

testing of candidate sites, as well as 

negotiating necessary land transfers, 

leases, and/or easements. The location 

of a quarry, mine, or yard is important 

due to the high cost of transporting 

coarse aggregate, but there are few sites, 

especially in metropolitan areas, on 

which to locate coarse aggregate 

operations. 

47. Due to the geology in South 

Hampton Roads, coarse aggregate for 

most applications in South Hampton 

Roads is produced outside the area. For 

an entrant to compete effectively in 

South Hampton Roads with a combined 

Vulcan and Florida Rock, that entrant 

must pair a new or existing rail- or 

water-served quarry with a distribution 

yard in the South Hampton Roads area 

that is capable of receiving coarse 

aggregate from such a quarry. Rail- or 

water-served quarries situated to 

compete effectively in South Hampton 

Roads, and the proper sites for 

distribution yards to serve those 

quarries, are scarce. 

48. Obtaining necessary zoning 

variances and governmental permits for 

a coarse aggregate quarry or mine also 

can be difficult, time-consuming, and 

costly. In metropolitan areas, land of the 

necessary size and geology often is 

already utilized or does not have the 

appropriate zoning, and obtaining 

zoning variances can be extremely 

difficult. Attempts to open a new coarse 

aggregate quarry or mine, especially in 

metropolitan areas (such as West 

Atlanta, Southwest Atlanta, South 

Atlanta, Columbus, Chattanooga, and 

South Hampton Roads) but also 

frequently in rural areas, often face 

fierce public opposition. This public 

opposition can prevent a coarse 

aggregate quarry or mine from opening 

or make opening it much more timeconsuming and costly. In addition, state 

and federal water, air quality, and other 

permitting process requirements must 

be met. 

49. Even after a quarry or mine site is 

acquired and properly zoned and 

permitted, the owner must spend 

significant time and resources to 

prepare the land and install the 

equipment necessary to run the 

operation. 

50. Therefore, entry by any other firm 

into the coarse aggregate market in the 

relevant geographic areas will not be 

timely, likely, or sufficient to defeat an 

anticompetitive price increase. 

V. Violations Alleged 

51. The proposed acquisition of 

Florida Rock by Vulcan would 

substantially lessen competition and 

tend to create a monopoly in interstate 

trade and commerce in violation of 

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

18. 

52. Unless restrained, the transaction 

will have the following anticompetitive 

effects, among others: 

a. Actual and potential competition 

between Vulcan and Florida Rock in the 

production, distribution, and sale of 

coarse aggregate in the relevant 

geographic markets will be eliminated; 

b. Competition generally in the 

production, distribution, and sale of 

coarse aggregate in the relevant 

geographic markets will be substantially 

lessened; and 

c. Prices for coarse aggregate in the 

relevant geographic markets likely will 

increase. 

VI. Request for Relief 

53. Plaintiff requests that: 

a. Vulcan’s proposed acquisition of 

Florida Rock be adjudged and decreed 

to be unlawful and in violation of 

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

18; 

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68184 Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices 

b. Defendants and all persons acting 

on their behalf be permanently enjoined 

and restrained from consummating the 

proposed acquisition or from entering 

into or carrying out any contract, 

agreement, plan, or understanding, the 

effect of which would be to combine 

Vulcan with the operations of Florida 

Rock; 

c. Plaintiff be awarded its costs for 

this action; and 

d. Plaintiff receive such other and 

further relief as the Court deems just 

and proper. 

Respectfully submitted, 

For Plaintiff United States of America: 

Thomas O. Barnett, 

Assistant Attorney General D.C. Bar #426840 

David L. Meyer, 

Deputy Assistant Attorney General D.C. Bar 

#414420 

Patricia A. Brink, 

Deputy Director of Operations 

Maribeth Petrizzi, 

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

Dorothy B. Fountain, 

Assistant Chief, Litigation II Section D.C. Bar 

#439469 

Robert W. Wilder, 

Helena Gardner, 

Christine A. Hill (D.C. Bar #461048), 

Leslie Peritz, 

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

James S. Yoon (D.C. Bar #491309), 

Attorneys, United States Department of 

Justice Antitrust Division, Litigation II 

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

Washington, DC 20530, (202) 307–6336 

Dated: November 13, 2007 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Vulcan Materials Company and Florida Rock 

Industries, Inc., Defendants. 

Case No.: 

Judge: 

Deck Type: Antitrust 

Date Stamp: 

Final Judgment 

Whereas, plaintiff, United States of 

America, filed its Complaint on 

November 13, 2007, and plaintiff and 

defendants, Vulcan Materials Company 

(‘‘Vulcan’’) and Florida Rock Industries, 

Inc. (‘‘Florida Rock’’), by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

And whereas, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights or assets by 

defendants to assure that competition is 

not substantially lessened; 

And whereas, the United States 

requires defendants to make certain 

divestitures for the purpose of 

remedying the loss of competition 

alleged in the Complaint; 

And whereas, defendants have 

represented to the United States that the 

divestitures required below can and will 

be made and that defendants will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is ordered, 

adjudged and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against defendants under Section 7 of 

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

18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ or ‘‘Acquirers’’ means 

the entity or entities to whom 

defendants divest some or all of the 

Divestiture Assets. 

B. ‘‘Coarse aggregate’’ means crushed 

stone produced at quarries or mines and 

used for, among other things, road base 

and the production of ready mix 

concrete and asphalt. 

C. ‘‘Divestiture Assets’’ means: 

1. The following quarries and yard: 

a. The Florida Rock Six Mile quarry, 

located at 3785 Cave Springs Road, 

Cedarton, Georgia; 

b. The Florida Rock Paulding quarry, 

located at 112 Quarry Road, Yorkville, 

Georgia; 

c. The Florida Rock Tyrone quarry, 

located at 240 Rockwood Road, Tyrone, 

Georgia; 

d. The Vulcan Red Oak quarry, 

located at 5414 Buffington Road, Red 

Oak, Georgia; 

e. The Vulcan quarry under 

development in Butts County, located 

on Greer Dairy Road, Jackson, Georgia; 

f. The Florida Rock interest in 

Columbus Quarry LLC, which owns the 

Columbus quarry, located at 3001 Smith 

Road, Columbus, Georgia; 

g. The Florida Rock Jersey Pike 

quarry, located at 2 Pelican Drive, 

Chattanooga, Tennessee; 

h. The Florida Rock Richmond 

quarry, located at 2100 Deepwater 

Terminal Road, Richmond, Virginia (but 

excluding the Florida Rock ready mix 

concrete plant, the real property 

necessary for the operation of the plant 

(provided the conveyance of such 

property does not interfere with the 

operation of the Richmond quarry), and 

all other tangible and intangible assets 

exclusively used in the plant’s 

operations) and, at the option of the 

Acquirer, use of the real property, 

parking lot, equipment shop, and office 

building equivalent to that which 

Florida Rock currently has for its quarry 

operations; and 

i. The Florida Rock Gilmerton yard, 

located at 4606 Bainbridge Boulevard, 

Chesapeake, Virginia (but excluding the 

Florida Rock ready mix concrete plant, 

the real property necessary for the 

operation of the plant (provided the 

conveyance of such property does not 

interfere with the operation of the 

Gilmerton yard), and all other tangible 

and intangible assets exclusively used 

in the plant’s operations) and, at the 

option of the Acquirer, use of the real 

property, parking lot, equipment shop, 

fuel station, and office building 

equivalent to that which Florida Rock 

currently has for its operation of the 

yard; 

2. All tangible assets used in or for the 

quarries and yard listed in Paragraphs 

II(C)(1)(a) through (i), including but not 

limited to all research and development 

activities (except for any such research 

and development activities that are 

principally devoted to either 

defendant’s operations as a whole and 

not specifically to the operations of the 

quarries and yard listed in Paragraphs 

II(C)(1)(a) through (i), and that are not 

necessary to the operation of the 

quarries and yard listed in Paragraphs 

II(C)(1)(a) through (i)), equipment, 

tooling and fixed assets, real property 

(leased or owned), personal property, 

inventory, coarse aggregate reserves, 

office furniture, materials, supplies, onor off-site warehouses or storage 

facilities relating to the quarries and 

yard; all licenses, permits, and 

authorizations issued by any 

governmental organization relating to 

the quarries and yard; all contracts, 

teaming arrangements, agreements, 

leases (including renewal rights), 

commitments, certifications, and 

understandings relating to the quarries 

and yard, including sales agreements 

and supply agreements; all customer 

lists, contracts, accounts, and credit 

records relating to the quarries and yard; 

all repair and performance records and 

all other records relating to the quarries 

and yard; at the option of the Acquirer 

or Acquirers, a number of trucks, rail 

cars, and other vehicles usable at the 

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quarries and yard listed in Paragraphs 

II(C)(1)(a) through (i) equal to, for each 

separate type of truck, rail car, or other 

vehicle, the average number of trucks, 

rail cars, and other vehicles of that type, 

owned or controlled by defendants, 

used at each such quarry or yard per 

month during the months of operation 

of the quarry or yard between January 1, 

2006 and December 31, 2006 (calculated 

by averaging the number of trucks, rail 

cars, and other vehicles of each type, 

owned or controlled by defendants, that 

were used at each quarry or yard at any 

time during each month that the quarry 

or yard was in operation); and at the 

option of the Acquirer or Acquirers, a 

number of barges usable at the quarry 

and yard listed in Paragraphs II(C)(1)(h) 

and (i) equal to, for each separate type 

of barge, the average number of barges 

of that type, owned or controlled by 

defendants, used at such quarry or yard 

per month during the months of 

operation of the quarry or yard between 

January 1, 2006 and December 31, 2006 

(calculated by averaging the number of 

barges of that type, owned or controlled 

by defendants, that were used at such 

quarry or yard at any time during each 

month that the quarry or yard was in 

operation); and 

3. All intangible assets used in the 

development, production, servicing, 

distribution, and sale of products 

produced by or in the quarries or stored 

in the yard listed in Paragraphs 

II(C)(1)(a) through (i), including but not 

limited to all contractual rights (except 

for any such contractual rights that are 

principally devoted to either 

defendant’s operations as a whole and 

not specifically to the operations of the 

quarries and yard listed in Paragraphs 

II(C)(1)(a) through (i), and that are not 

necessary to the operation of the 

quarries and yard listed in Paragraphs 

II(C)(1)(a) through (i)), patents, licenses 

and sub-licenses, intellectual property 

rights, copyrights, trademarks, trade 

names, service marks, service names, 

technical information, know-how, trade 

secrets, drawings, blueprints, designs, 

design protocols, specifications for 

materials, specifications for parts and 

devices, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, all manuals and technical 

information defendants provide to their 

own employees, customers, suppliers, 

agents, or licensees, and all research 

data (including coarse aggregate reserve 

testing information) concerning historic 

and current research and development 

efforts relating to the quarries and yard, 

including but not limited to designs of 

experiments and the results of 

successful and unsuccessful designs and 

experiments. Notwithstanding anything 

to the contrary in this Final Judgment, 

if requested by an Acquirer, and subject 

to approval by the United States in its 

sole discretion, defendants shall offer to 

enter into a transition services 

agreement with respect to computer 

software (including dispatch software 

and management information systems) 

and related documentation, and design 

tools and simulation capability. 

D. ‘‘Florida Rock’’ means defendant 

Florida Rock Industries, Inc., a Florida 

corporation with its headquarters in 

Jacksonville, Florida, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

E. ‘‘Vulcan’’ means defendant Vulcan 

Materials Company, a New Jersey 

corporation with its headquarters in 

Birmingham, Alabama, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

III. Applicability 

A. This Final Judgment applies to 

Vulcan and Florida Rock, as defined 

above, and all other persons in active 

concert or participation with Vulcan or 

Florida Rock who receive actual notice 

of this Final Judgment by personal 

service or otherwise. 

B. If, prior to complying with Sections 

IV and V of this Final Judgment, 

defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of lesser business units that include the 

Divestiture Assets, they shall require the 

purchaser to be bound by the provisions 

of this Final Judgment. Defendants need 

not obtain such an agreement from the 

acquirers of the assets divested pursuant 

to this Final Judgment. 

IV. Divestitures 

A. Defendants are ordered and 

directed, within ninety (90) calendar 

days after the filing of the Complaint in 

this matter, or five (5) days after notice 

of the entry of this Final Judgment by 

the Court, whichever is later, to divest 

the Divestiture Assets in a manner 

consistent with this Final Judgment to 

an Acquirer or Acquirers acceptable to 

the United States in its sole discretion. 

The United States, in its sole discretion, 

may agree to one or more extensions of 

this time period, not to exceed in total 

sixty (60) calendar days, and shall notify 

the Court in each such circumstance. 

Defendants agree to use their best efforts 

to divest the Divestiture Assets as 

expeditiously as possible. 

B. In accomplishing the divestitures 

ordered by this Final Judgment, 

defendants promptly shall make known, 

by usual and customary means, the 

availability of the Divestiture Assets. 

Defendants shall inform any person 

making inquiry regarding a possible 

purchase of the Divestiture Assets that 

they are being divested pursuant to this 

Final Judgment and provide that person 

with a copy of this Final Judgment. 

Unless the United States otherwise 

consents in writing, defendants shall 

offer to furnish to all prospective 

Acquirers, subject to customary 

confidentiality assurances, all 

information and documents relating to 

the Divestiture Assets customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client or workproduct privileges. Defendants shall 

make available such information to the 

United States at the same time that such 

information is made available to any 

other person. 

C. Defendants shall not take any 

action that win impede in any way any 

person from competing for or obtaining 

the lease to the Branscome Chesapeake 

yard, located at 120 Dominion 

Boulevard, Chesapeake, Virginia. 

D. Unless the United States otherwise 

consents in writing, defendants shall 

provide the Acquirer or Acquirers and 

the United States information relating to 

personnel involved in production, 

operations, development, and sales at 

the Divestiture Assets to enable the 

Acquirer or Acquirers to make offers of 

employment. Defendants shall not 

interfere with any negotiations by the 

Acquirer or Acquirers to employ any 

employee of the Divestiture Assets 

whose primary responsibility is 

production, operations, development, or 

sales at the Divestiture Assets. 

E. Unless the United States otherwise 

consents in writing, defendants shall 

permit prospective Acquirers of the 

Divestiture Assets to have reasonable 

access to personnel and to make 

inspections of the physical facilities of 

the Divestiture Assets; access to any and 

all environmental, zoning, and other 

permit documents and information; and 

access to any and all financial, 

operational, or other documents and 

information customarily provided as 

part of a due diligence process. 

F. With the exception of the Butts 

County site listed in Paragraph 

II(C)(1)(e), defendants shall warrant to 

the Acquirer or Acquirers that each 

asset will be operational on the date of 

sale. Vulcan shall further warrant to the 

Acquirer that it has obtained all 

environmental, zoning, or other permits 

required to produce coarse aggregate at 

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the Vulcan quarry under development 

in Butts County, identified in Paragraph 

II(C)(1)(e), and that such permits are 

transferable to the Acquirer. 

G. Defendants shall not take any 

action that will impede in any way the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

H. Defendants shall warrant to the 

Acquirer or Acquirers that there are no 

material defects in the environmental, 

zoning, or other permits pertaining to 

the operation of the Divestiture Assets. 

Defendants shall not undertake, directly 

or indirectly, any challenges to the 

environmental, zoning, or other permits 

relating to the operation of the 

Divestiture Assets. 

I. Unless the United States otherwise 

consents in writing, any divestiture 

pursuant to Section IV, or by trustee 

appointed pursuant to Section V, of this 

Final Judgment, shall include the entire 

Divestiture Assets, and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion, 

that the Divestiture Assets can and will 

be used by the Acquirer or Acquirers as 

viable, ongoing businesses engaged in 

producing and distributing coarse 

aggregate, that the Divestiture Assets 

will remain viable, and that the 

divestiture of such assets will remedy 

the competitive harm alleged in the 

Complaint. The sale of the Divestiture 

Assets may be made to one or more 

Acquirers, so long as the Florida Rock 

Richmond quarry, identified in 

Paragraph II(C)(1)(h) above, and the 

Florida Rock Gilmerton yard, identified 

in Paragraph II(C)(1)(i) above, are 

divested to a single Acquirer. The 

divestitures, whether pursuant to 

Section IV or Section V of this Final 

Judgment: 

1. Shall be made to an Acquirer or 

Acquirers that, in the United States’s sole 

judgment, has the intent and capability 

(including the necessary managerial, 

operational, technical and financial 

capability) to compete effectively in the 

production, distribution, and sale of coarse 

aggregate; and 

2. Shall be accomplished so as to satisfy 

the United States, in its sole discretion, that 

none of the terms of any agreement between 

an Acquirer or Acquirers and defendants 

gives defendants the ability to unreasonably 

raise the Acquirer’s costs, to lower the 

Acquirer’s efficiency, or otherwise to 

interfere in the ability of the Acquirer to 

compete effectively in the production, 

distribution, and sale of coarse aggregate. 

V. Appointment of Trustee To Effect 

Divestitures 

A. If defendants have not divested the 

Divestiture Assets within the time 

period specified in Paragraph IV(A), 

defendants shall notify the United 

States of that fact in writing. Upon 

application of the United States, the 

Court shall appoint a trustee selected by 

the United States and approved by the 

Court to effect the divestiture of the 

Divestiture Assets. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Divestiture 

Assets. The trustee shall have the power 

and authority to accomplish the 

divestiture to an Acquirer acceptable to 

the United States at such price and on 

such terms as are then obtainable upon 

reasonable effort by the trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to Paragraph 

V(D) of this Final Judgment, the trustee 

may hire at the cost and expense of 

defendants any investment bankers, 

attorneys, or other agents, who shall be 

solely accountable to the trustee, 

reasonably necessary in the trustee’s 

judgment to assist in the divestiture. 

C. Defendants shall not object to a sale 

by the trustee on any ground other than 

the trustee’s malfeasance. Any such 

objection by defendants must be 

conveyed in writing to the United States 

and the trustee within ten (10) calendar 

days after the trustee has provided the 

notice required under Section VI. 

D. The trustee shall serve at the cost 

and expense of defendants, on such 

terms and conditions as the United 

States approves, and shall account for 

all monies derived from the sale of the 

assets sold by the trustee and all costs 

and expenses so incurred. After 

approval by the Court of the trustee’s 

accounting, including fees for its 

services and those of any professionals 

and agents retained by the trustee, all 

remaining money shall be paid to 

defendants and the trust shall then be 

terminated. The compensation of the 

trustee and any professionals and agents 

retained by the trustee shall be 

reasonable in light of the value of the 

Divestiture Assets and based on a fee 

arrangement providing the trustee with 

an incentive based on the price and 

terms of the divestiture and the speed 

with which it is accomplished, but 

timeliness is paramount. 

E. Defendants 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 business to be divested, and 

defendants shall develop financial and 

other information relevant to such 

business as the trustee may reasonably 

request, subject to reasonable protection 

for trade secrets or other confidential 

research, development, or commercial 

information. Defendants shall take no 

action to interfere with or to impede the 

trustee’s accomplishment of the 

divestiture. 

F. After its appointment, the trustee 

shall file monthly reports with the 

United States and the Court setting forth 

the trustee’s efforts to accomplish the 

divestiture ordered under this Final 

Judgment. To the extent such reports 

contain information that the trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. Such reports shall include the 

name, address, and telephone number of 

each person who, during the preceding 

month, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring any interest in the Divestiture 

Assets, and shall describe in detail each 

contact with any such person. The 

trustee shall maintain full records of all 

efforts made to divest the Divestiture 

Assets. 

G. If the trustee has not accomplished 

the divestitures ordered under this Final 

Judgment within six months after its 

appointment, the trustee shall promptly 

file with the Court a report setting forth: 

(1) The trustee’s efforts to accomplish 

the required divestiture; (2) the reasons, 

in the trustee’s judgment, why the 

required divestiture has not been 

accomplished; and (3) the trustee’s 

recommendations. To the extent such 

report contains information that the 

trustee deems confidential, such report 

shall not be filed in the public docket 

of the Court. The trustee shall at the 

same time furnish such report to the 

United States, which shall have the 

right to make additional 

recommendations consistent with the 

purpose of the trust. The Court 

thereafter shall enter such orders as it 

shall deem appropriate to carry out the 

purpose of the Final Judgment, which 

may, if necessary, include extending the 

trust and the term of the trustee’s 

appointment by a period requested by 

the United States. 

VI. Notice of Proposed Divestitures 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, defendants or the 

trustee, whichever is then responsible 

for effecting the divestiture required 

herein, shall notify the United States of 

any proposed divestiture required by 

Section IV or V of this Final Judgment. 

If the trustee is responsible, it shall 

similarly notify defendants. The notice 

shall set forth the details of the 

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proposed divestiture and list the name, 

address, and telephone number of each 

person not previously identified who 

offered or expressed an interest in or 

desire to acquire any ownership interest 

in the Divestiture Assets, together with 

full details of the same. 

B. Within fifteen (15) calendar days of 

receipt by the United States of such 

notice, the United States may request 

from defendant, the proposed Acquirer 

or Acquirers, any other third party, or 

the trustee, if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer or 

Acquirers, and any other potential 

Acquirer. Defendants and the trustee 

shall furnish any additional information 

requested within fifteen (15) calendar 

days of the receipt of the request, unless 

the parties shall otherwise agree. 

C. Within thirty (30) calendar days 

after receipt of the notice, or within 

twenty (20) calendar days after the 

United States has been provided the 

additional information requested from 

defendant, the proposed Acquirer or 

Acquirers, any third party, or the 

trustee, whichever is later, the United 

States shall provide written notice to 

defendants and the trustee, if there is 

one, stating whether or not it objects to 

the proposed divestiture. If the United 

States provides written notice that it 

does not object, the divestiture may be 

consummated, subject only to 

defendant’s limited right to object to the 

sale under Paragraph V(C) of this Final 

Judgment. Absent written notice that the 

United States does not object to the 

proposed Acquirer or upon objection by 

the United States, a divestiture 

proposed under Section IV or Section V 

shall not be consummated. Upon 

objection by defendants under 

Paragraph V(C), a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendants shall not finance all or 

any part of any purchase made pursuant 

to Section IV or V of this Final 

Judgment. 

VIII. Hold Separate 

Until the divestitures required by this 

Final Judgment have been 

accomplished, defendants shall take all 

steps necessary to comply with the Hold 

Separate Stipulation and Order entered 

by this Court. Defendants shall take no 

action that would jeopardize the 

divestiture ordered by this Court. 

IX. Affidavits 

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestitures 

have been completed under Section IV 

or V, defendants shall deliver to the 

United States an affidavit as to the fact 

and manner of their compliance with 

Section IV or V of this Final Judgment. 

Each such affidavit shall include the 

name, address, and telephone number of 

each person who, during the preceding 

thirty (30) calendar days, made an offer 

to acquire, expressed an interest in 

acquiring, entered into negotiations to 

acquire, or was contacted or made an 

inquiry about acquiring, any interest in 

the Divestiture Assets, and shall 

describe in detail each contact with any 

such person during that period. Each 

such affidavit shall also include a 

description of the efforts defendants 

have taken to solicit buyers for the 

Divestiture Assets, and to provide 

required information to any prospective 

Acquirer, including the limitations, if 

any, on such information. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States to information provided 

by defendants, including limitations on 

the information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, defendants shall deliver to the 

United States an affidavit that describes 

in reasonable detail all actions 

defendants have taken and all steps 

defendants have implemented on an 

ongoing basis to comply with Section 

VIII of this Final Judgment. Defendants 

shall deliver to the United States an 

affidavit describing any changes to the 

efforts and actions outlined in 

defendants’ earlier affidavits filed 

pursuant to this section within fifteen 

(15) calendar days after the change is 

implemented. 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 

after such divestitures have been 

completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

authorized representatives of the United 

States Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon written 

request of an authorized representative 

of the Assistant Attorney General in 

charge of the Antitrust Division, and on 

reasonable notice to defendants, be 

permitted: 

1. Access during defendants’ office hours 

to inspect and copy, or at the option of the 

United States, to require defendants to 

provide hard or electronic copies of, all 

books, ledgers, accounts, records, data and 

documents in the possession, custody, or 

control of defendants, relating to any matters 

contained in this Final Judgment; and 

2. To interview, either informally or on the 

record, defendants’ officers, employees, or 

agents, who may have their individual 

counsel present, regarding such matters. The 

interviews shall be subject to the reasonable 

convenience of the interviewee and without 

restraint or interference by defendant. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports or responses to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If, at the time information or 

documents are furnished by defendants 

to the United States, defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

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

Procedure, and defendants mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

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

Civil Procedure,’’ then the United States 

shall give defendants ten (10) calendar 

days notice prior to divulging such 

material in any legal proceeding (other 

than a grand jury proceeding). 

XI. No Reacquisition 

Defendants may not reacquire any 

part of the Divestiture Assets during the 

term of this Final Judgment. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

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1Construction aggregates include crushed stone, 

grave, sand, recycled asphalt, and recycled 

concrete. 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including making copies 

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’s responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: llllllllllllllll

Court approval subject to procedures 

of the Antitrust Procedures and 

Penalties Act, 15 U.S.C. 16. 

lllllllllllllllllll

United States District Judge 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Vulcan Materials Company and Florida Rock 

Industries, Inc., Defendants. 

Case: 1:07-cv-02044 

Assigned To: Sullivan, Emmet G. 

Assign. Date: 11/13/2007 

Description: Antitrust 

Deck Type: Antitrust 

Date Stamp: 

Competitive Impact Statement 

Plaintiff United States of America 

(‘‘United States’’), pursuant to Section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

Act’’), 15 U.S.C. 16(b)–(h), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

The United States filed a civil 

antitrust Complaint on November 13, 

2007, seeking to enjoin the proposed 

acquisition by Vulcan Materials 

Company (‘‘Vulcan’’) of Florida Rock 

Industries, Inc. (‘‘Florida Rock’’). The 

Complaint alleges that the likely effect 

of this acquisition would be to lessen 

competition substantially in the 

production, distribution, and sale of 

coarse aggregate in certain areas of 

Georgia, Tennessee and Virginia, in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. This loss of 

competition likely would result in 

higher prices for coarse aggregate in the 

affected areas. 

At the same time the Complaint was 

filed, the United States also filed a Hold 

Separate Stipulation and Order and a 

proposed Final Judgment, which were 

designed to eliminate the 

anticompetitive effects of the 

acquisition. Under the proposed Final 

Judgment, which is explained more 

fully below, Vulcan and Florida Rock 

are required to divest single coarse 

aggregate quarries in Chattanooga, 

Tennessee, Columbus, Georgia, and 

Richmond, Virginia; four quarries and 

one site that is being developed for use 

as a quarry in the western and southern 

parts of the Atlanta area; and a 

distribution yard in Chesapeake, 

Virginia. Until the divestitures required 

by the Final Judgment have been 

accomplished, the Hold Separate 

Stipulation and Order requires Vulcan 

and Florida Rock to preserve, maintain, 

and continue to operate the plants 

discussed above (hereafter ‘‘Divestiture 

Assets’’) as independent, ongoing, 

economically viable competitive 

businesses held entirely separate, 

distinct, and apart from those of 

defendants’ other operations. 

The United States, Vulcan, and 

Florida Rock have stipulated that the 

proposed Final Judgment may be 

entered after compliance with the 

APPA. Entry of the proposed Final 

Judgment would terminate this action, 

except that the Court would retain 

jurisdiction to construe, modify, or 

enforce the provisions of the proposed 

Final Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendants and the Proposed 

Transaction 

Vulcan is a New Jersey corporation 

with its principal place of business in 

Birmingham, Alabama. It is the nation’s 

largest producer of construction 

aggregates, and is also a major provider 

of other construction materials and 

related services. In 2006, Vulcan 

shipped approximately 255 million tons 

of construction aggregates—the majority 

of which were coarse aggregate—to 

customers in 21 states, the District of 

Columbia, and Mexico. Its 2006 sales 

were over $3 billion. 

Florida Rock is a Florida corporation 

with its principal place of business in 

Jacksonville, Florida. It produces, 

distributes, and sells, among other 

products, construction aggregates, ready 

mix concrete, prestressed concrete, and 

cement. Its sales are concentrated in the 

southeastern and mid-Atlantic states. In 

2006, Florida Rock shipped 

approximately 45 million tons of 

construction aggregates, a majority of 

which were coarse aggregate, and 

reported total sales of approximately 

$1.4 billion. 

On February 19, 2007, Vulcan and 

Florida Rock entered into an agreement 

for Vulcan to acquire Florida Rock in a 

cash-and-stock transaction valued at 

approximately $4.6 billion. 

B. The Competitive Effects of the 

Transaction on the Market for Coarse 

Aggregate. 

1. Relevant Product Market 

The Complaint alleges that the 

production, distribution, and sale of 

coarse aggregate is a relevant product 

market within the meaning of Section 7 

of the Clayton Act. Coarse aggregate is 

a type of construction aggregate, and 

includes crushed stone of varying sizes 

produced at quarries or mines.1 Among 

other things, it is used as base material 

for roads and other construction sites 

and for the production of ready mix 

concrete and asphalt. Different sizes of 

coarse aggregate are needed to meet 

different project specifications. 

There are no reliable substitutes for 

coarse aggregate because it differs from 

other products in its physical 

composition, functional characteristics, 

customary uses, consistent availability, 

and pricing. To the extent that any 

substitutes exist, most customers 

already use these to the full extent 

possible in light of the limits on their 

availability and the amounts that can be 

used in a given product, and cannot use 

more of them in place of coarse 

aggregate in response to an increase in 

the price of coarse aggregate. The 

Complaint alleges that a small but 

significant post-acquisition increase in 

the price of coarse aggregate would not 

cause its purchasers to substitute 

another product in sufficient quantities 

so as to make such a price increase 

unprofitable. Accordingly, the 

production, distribution, and sale of 

coarse aggregate is a relevant product 

market. 

2. Relevant Geographic Markets 

Coarse aggregate is a bulky, heavy, 

and relatively low-value product. In 

some markets, coarse aggregate is 

delivered to customers exclusively by 

truck. In other markets, the lack of 

native coarse aggregate sources and the 

availability of rail and/or navigable 

waterways makes it economical to rail 

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barge, and/or ship coarse aggregate 

directly to customer plants or job sites, 

or, much more frequently, to a 

distribution yard from which it is 

picked up by truck and delivered to the 

end customer. The cost of transporting 

coarse aggregate is high compared to its 

value, which limits the distance it can 

be economically transported from a 

quarry or distribution yard to a ready 

mix concrete or asphalt plant or job site. 

Transportation costs, as well as the 

location of competitors relative to a 

customer’s plant or job site, thus limit 

the geographic area within which a 

coarse aggregate supplier can effectively 

compete. 

The Complaint alleges that there are 

a number of geographic areas that 

constitute geographic markets in which 

the proposed acquisition by Vulcan of 

Florida Rock will harm competition in 

the production, distribution, and sale of 

coarse aggregate. As discussed below, in 

each of these geographic markets, 

Vulcan and Florida Rock quarries face 

limited competition from other 

suppliers in the delivery of coarse 

aggregate to customers in the market 

and, because of transportation costs, a 

small but significant post-acquisition 

increase in the price of coarse aggregate 

would not cause customers to procure 

coarse aggregate from quarries farther 

away. 

a. Northwest Atlanta 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Cedarton, Georgia, known as the Six 

Mile quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Floyd, Polk, 

Haralson, and Bartow Counties in 

Georgia (hereafter referred to as 

‘‘Northwest Atlanta’’). Customers with 

plants or jobs within Northwest Atlanta 

may, depending on the location of their 

plant or job sites, also economically 

procure coarse aggregate from Vulcan’s 

Adairsville, Bartow, and Rockmart 

quarries and from another competitor’s 

quarry located in Cartersville, Georgia. 

b. West Atlanta 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Yorkville, Georgia, known as the 

Paulding quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Paulding, 

Douglas, Carroll, Haralson, Polk, and 

Cobb Counties in Georgia (hereafter 

referred to as ‘‘West Atlanta’’). 

Customers with plants or jobs within 

West Atlanta may, depending on the 

location of their plant or job sites, also 

economically procure coarse aggregate 

from Vulcan’s Villa Rica, Kennesaw, 

and Lithia Springs quarries and from the 

quarries of other competitors located in 

Dallas, Georgia, and Douglasville, 

Georgia. 

c. Southwest Atlanta 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Tyrone, Georgia, known as the Tyrone 

quarry. This quarry serves a geographic 

area that includes, among other areas, 

all or part of Fulton, Coweta, Fayette, 

and Clayton Counties in Georgia 

(hereafter referred to as ‘‘Southwest 

Atlanta’’). Customers with plants or jobs 

within Southwest Atlanta may, 

depending on the location of their plant 

or job sites, also economically procure 

coarse aggregate from Vulcan’s Madras 

quarry and from another competitor’s 

quarry located in Tyrone, Georgia. 

d. South Atlanta 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Riverdale, Georgia, known as the Forest 

Park quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Fulton, 

Clayton, Henry, DeKalb, and Fayette 

Counties in Georgia (hereafter referred 

to as ‘‘South Atlanta’’). Customers with 

plants or jobs within South Atlanta may, 

depending on the location of their plant 

or job sites, also economically procure 

coarse aggregate from Vulcan’s Red Oak 

quarry and from another competitor’s 

quarry located in College Park, Georgia. 

e. Southeast Atlanta 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Zotella, Georgia, known as the Griffin 

quarry. This quarry serves a geographic 

area that includes, among other areas, 

all or part of Spalding and Henry 

Counties in Georgia (hereafter referred 

to as ‘‘Southeast Atlanta’’). Customers 

with plants or jobs within Southeast 

Atlanta may, depending on the location 

of their plant or job sites, also 

economically procure coarse aggregate 

from Vulcan’s Stockbridge quarry. In 

addition, Vulcan is in the process of 

opening a new quarry in Butts County, 

Georgia, expected to be operational in 

2008, from which it plans to serve, 

among other areas, customers in all or 

part of Southeast Atlanta. 

f. Columbus 

Florida Rock owns a majority interest 

in a company that owns and operates a 

coarse aggregate quarry located in 

Columbus, Georgia, known as the 

Columbus quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Muscogee and 

Harris Counties in Georgia (hereafter 

referred to as ‘‘Columbus’’). Customers 

with plants or jobs within Columbus 

may, depending on the location of their 

plant or job sites, also economically 

procure coarse aggregate from Vulcan’s 

Barin quarry and from another 

competitor’s quarry located in Midland, 

Georgia. 

g. Chattanooga 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Chattanooga, Tennessee, known as the 

Jersey Pike quarry. This quarry serves a 

geographic area that includes, among 

other areas, all or part of Hamilton 

County in Tennessee (hereafter referred 

to as ‘‘Chattanooga’’). Customers with 

plants or jobs within Chattanooga may, 

depending on the location of their plant 

or job sites, also economically procure 

coarse aggregate from Vulcan’s 

Chattanooga quarry and from another 

competitor’s quarries located in 

Chattanooga, Tennessee, and Ringgold, 

Georgia. 

h. South Hampton Roads 

Florida Rock owns and operates a 

coarse aggregate quarry located in 

Richmond, Virginia, known as the 

Richmond quarry, a coarse aggregate 

quarry located in Havre de Grace, 

Maryland, known as the Havre de Grace 

quarry, and a barge-served distribution 

yard located in Chesapeake, Virginia, 

known as the Gilmerton yard. Florida 

Rock also operates a distribution yard 

owned by a third party located in 

Chesapeake, Virginia. Via these 

distribution yards, Florida Rock serves a 

geographic area that includes, among 

other areas, all or part of the cities of 

Norfolk, Suffolk, Portsmouth, 

Chesapeake, and Virginia Beach in 

Virginia (hereafter referred to as ‘‘South 

Hampton Roads’’). Customers with 

plants or jobs within South Hampton 

Roads may, depending on the location 

of their plant or job sites, also 

economically procure coarse aggregate 

from Vulcan rail and barge terminals 

supplied by Vulcan’s Richmond, 

LawrenceviIle, and Skippers quarries. 

Other quarries cannot on a regular basis 

compete successfully for customers with 

plants or jobs in South Hampton Roads 

because they do not have appropriate 

distribution facilities in the area and/or 

quarries similarly proximate to rail lines 

or navigable water sources. 

3. Anticompetitive Effects of the 

Acquisition 

In each relevant geographic area, the 

proposed acquisition will eliminate the 

competition between Vulcan and 

Florida Rock and substantially increase 

market concentration. In Southeast 

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Atlanta and South Hampton Roads, it 

will reduce the number of suppliers of 

most specifications of coarse aggregate 

from two to one. In Northwest Atlanta, 

Southwest Atlanta, South Atlanta, 

Columbus, and Chattanooga, the 

proposed acquisition will reduce the 

number of coarse aggregate suppliers 

from three to two generally, and for 

some customers and projects, will 

reduce the number from two to one. In 

West Atlanta, the proposed acquisition 

will reduce the number of coarse 

aggregate suppliers from four to three 

generally, and for some customers and 

projects, will reduce the number from 

three to two. 

The proposed acquisition will 

substantially increase the likelihood 

that Vulcan will unilaterally increase 

the price of coarse aggregate to a 

significant number of customers in all of 

the relevant geographic areas. The 

response of other coarse aggregate 

suppliers in the relevant geographic 

markets would not be sufficient to 

constrain a unilateral exercise of market 

power by Vulcan after the acquisition 

because those suppliers likely would 

not have sufficient capacity and/or 

incentives to increase production and 

sales enough to defeat an 

anticompetitive price increase by 

Vulcan. State permits and county 

zoning restrictions in many cases limit 

quarries’ hours of operation and/or 

production levels, and many coarse 

aggregate suppliers face practical 

limitations on the amount of truck 

traffic their facilities can handle. 

Moreover, because coarse aggregate 

mined trom quarries is a depletable 

natural resource and every quarry has 

finite reserves, every sale by a supplier 

today represents a tradeoff against 

future sales. 

Likewise, the response of customers 

would be insufficient to constrain a 

unilateral exercise of market power by 

Vulcan. To the extent that cost-effective 

substitutes exist, these already are being 

used to the full extent possible, and 

customers would not increase their use 

of these substitutes in response to an 

increase in the price of coarse aggregate. 

Thus, customers would not be able to 

prevent Vulcan’s exercise of market 

power. 

In addition, and notwithstanding 

competitor responses, post-acquisition 

Vulcan will be able to increase prices to 

those customers that have plants or job 

sites for which both a Vulcan quarry 

and a Florida Rock quarry are closer 

than any other quarries producing 

coarse aggregate meeting their 

specifications. Coarse aggregate 

suppliers know the locations of their 

competitors’ quarries and the distance 

from their own quarries and their 

competitors’ quarries to a customer’s 

plant or job site. Generally, because of 

transportation costs, the farther a 

supplier’s closest competitor is from a 

job site, the less price competition that 

supplier faces for that project. Postacquisition, in instances where Vulcan 

and Florida Rock quarries would be the 

closest quarries to a customer’s plant or 

project and the next closest coarse 

aggregate supplier’s plant is farther from 

the customer’s plant or project, the 

combined firm, using the knowledge of 

its competitors’ quarry locations, would 

be able to charge such customers higher 

prices. 

Further, the proposed acquisition is 

likely to facilitate anticompetitive 

coordination among the remaining 

coarse aggregate suppliers in Northwest 

Atlanta, West Atlanta, Southwest 

Atlanta, South Atlanta, Columbus, and 

Chattanooga. Coarse aggregate is 

homogeneous and suppliers have access 

to information about competitors’

output, capacity, and costs. Given these 

market conditions, eliminating Florida 

Rock as one of the few coarse aggregate 

competitors is likely to further increase 

the ability of the remaining competitors 

to coordinate successfully. 

Finally, timely and successful entry 

into the production, distribution, and 

sale of coarse aggregate is unlikely in 

any of the geographic areas and thus 

will not defeat anticompetitive 

unilateral or coordinated price increases 

resulting from the proposed acquisition. 

Securing the proper site for a coarse 

aggregate quarry or mine is difficult, 

time-consuming, and costly; it requires 

the investigation and extensive testing 

of candidate sites to find ones with 

adequate reserves of sufficient quality, 

and can require negotiations with 

multiple landowners as well as with 

government officials. Additional 

difficulties face a new entrant seeking to 

provide coarse aggregate to South 

Hampton Roads. In South Hampton 

Roads, the area’s geology is such that 

coarse aggregate for most applications 

must be imported from outside the area. 

For an entrant to compete effectively in 

South Hampton Roads with Vulcan 

post-acquisition, that entrant must pair 

a new or existing rail-or water-served 

quarry with a distribution yard in South 

Hampton Roads that is capable of 

receiving coarse aggregate from such a 

quarry. Rail-or water-served quarries 

situated to compete effectively in South 

Hampton Roads, and the proper sites for 

distribution yards to serve such 

quarries, are scarce. In all of the relevant 

geographic markets the location of a 

quarry or yard is important due to the 

high cost of transporting coarse 

aggregate, but there are very few sites, 

especially in metropolitan areas, on 

which to locate coarse aggregate 

operations. 

Obtaining necessary zoning variances 

and government permits for a coarse 

aggregate quarry can also be difficult, 

time-consuming, and costly. In 

metropolitan areas, land of the 

necessary size and geology is often 

already utilized or does not have the 

appropriate zoning, and obtaining 

zoning variances can be extremely 

difficult. Attempts to open a new coarse 

aggregate quarry or mine, especially in 

metropolitan areas (such as West 

Atlanta, Southwest Atlanta, South 

Atlanta, Columbus, Chattanooga, and 

South Hampton Roads) but also 

frequently in rural areas, often face 

fierce public opposition, which delays 

and raises the expense of opening such 

operations or prevents such projects 

altogether. In addition, state and federal 

water, air quality, and other permitting 

process requirements must be met, 

which can take from months to years. 

Finally, even after a quarry or mine 

site is selected, acquired, and properly 

zoned and permitted, the owner must 

spend significant time and resources to 

prepare the land and install the 

equipment necessary to run the 

operation. As a result of all of these 

costly and time-consuming barriers to 

entry, entry by any other firm. into the 

coarse aggregate market in the relevant 

geographic areas will not be timely, 

likely, or sufficient to defeat an anti 

competitive price mcrease. 

III. Explanation of the Proposed Final 

Judgment 

A. The Divestiture Assets 

The divestitures provided for in the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition in the markets for the 

production, distribution, and sale of 

coarse aggregate in all of the relevant 

geographic markets. In each market, the 

divestitures will establish a new, 

independent, and economically viable 

competitor. 

The Divestiture Assets include the 

following quarries and yard: 

a. The Florida Rock Six Mile quarry, 

located at 3785 Cave Springs Road, 

Cedarton, Georgia, divestiture of which 

will remedy the competitive concerns in 

Northwest Atlanta; 

b. The Florida Rock Paulding quarry, 

located at 112 Quarry Road, Yorkville, 

Georgia, divestiture of which will 

remedy the competitive concerns in 

West Atlanta; 

c. The Florida Rock Tyrone quarry, 

located at 240 Rockwood Road, Tyrone, 

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2The Final Judgment also provides that this 90- 

day time period may be extended by the United 

States in its sole discretion for a total period not 

exceeding 60 calendar days, and that the Court will 

receive prior notice of any such extension. 

Georgia, divestiture of which will 

remedy the competitive concerns in 

Southwest Atlanta; 

d. The Vulcan Red Oak quarry, 

located at 5414 Buffington Road, Red 

Oak, Georgia, divestiture of which will 

remedy the competitive concerns in 

South Atlanta; 

e. The Vulcan quarry under 

development in Butts County, located 

on Greer Dairy Road, Jackson, Georgia, 

divestiture of which will remedy the 

competitive concerns in Southeast 

Atlanta; 

f. The Florida Rock interest in 

Columbus Quarry LLC, which owns the 

Columbus quarry, located at 3001 Smith 

Road, Columbus, Georgia, divestiture of 

which will remedy the competitive 

concerns in Columbus; 

g. The Florida Rock Jersey Pike 

quarry, located at 2 Pelican Drive, 

Chattanooga, Tennessee, divestiture of 

which will remedy the competitive 

concerns in Chattanooga; 

h. The Florida Rock Richmond quarry 

located at 2100 Deepwater Terminal 

Road, Richmond, Virginia (but 

excluding the Florida Rock ready mix 

concrete plant, the real property 

necessary for the operation of the plant 

(provided the conveyance of such 

property does not interfere with the 

operation of the Richmond quarry), and 

all other tangible and intangible assets 

exclusively used in the plant’s 

operations) and, at the option of the 

Acquirer, use of the real property, 

parking lot, equipment shop, and office 

building equivalent to that which 

Florida Rock currently has for its quarry 

operations, divestiture of which (in 

addition to the yard listed in Paragraph 

(i)) will remedy the competitive 

concerns in South Hampton Roads; and 

i. in South Hampton Roads, the 

Florida Rock Gilmerton yard, located at 

4606 Bainbridge Boulevard, 

Chesapeake, Virginia (but excluding the 

Florida Rock ready mix concrete plant, 

the real property necessary for the 

operation of the plant (provided the 

conveyance of such property does not 

interfere with the operation of the 

Gilmerton yard), and all other tangible 

and intangible assets exclusively used 

in the plant’s operations) and, at the 

option of the Acquirer, use of the real 

property, parking lot, equipment shop, 

fuel station, and office building 

equivalent to that which Florida Rock 

currently has for its operation of the 

yard, divestiture of which (in addition 

to the quarry listed in Paragraph (h)) 

will remedy the competitive concerns in 

South Hampton Roads. 

The proposed merger does not raise 

competitive concerns with respect to the 

sale of ready mix concrete in either 

Richmond or South Hampton Roads. 

Thus, parts (h) and (i) of the Divestiture 

Assets definition above excludes 

property related to Florida Rock’s ready 

mix concrete operations located at the 

Richmond quarry and Gilmerton yard 

properties that is not necessary to the 

operation of the quarry and coarse 

aggregate yard, and specifically grant 

back to the Acquirer the right to use real 

property and facilities that are currently 

used by both the coarse aggregate and 

the ready mix operations. 

The Divestiture Assets also include all 

tangible assets used in or for the abovelisted quarries and yard as well as all 

intangible assets used in the 

development, production, servicing, 

distribution, and sale of products 

produced by or in the quarries or stored 

in the yard. 

The sale of the Divestiture Assets 

according to the terms of the proposed 

Final Judgment will ensure that 

Vulcan’s acquisition of Florida Rock 

does not harm competition in any of the 

affected geographic areas. 

B. Selected Provisions of the Proposed 

Final Judgment 

In antitrust cases involving mergers in 

which the United States seeks a 

divestiture remedy, it requires 

completion of the divestiture within the 

shortest time period reasonable under 

the circumstances. A quick divestiture 

has the benefits of restoring competition 

lost in the acquisition and reducing the 

possibility of dissipation of the value of 

the assets. Paragraph IV(A) of the 

proposed Final Judgment requires 

Defendants to divest the Divestiture 

Assets as viable ongoing businesses 

within 90 days after the filing of the 

Complaint in this matter or five days 

after notice of the entry of the Final 

Judgment by the Court, whichever is 

later.2

Paragraph IV (D) provides that 

Defendants shall not impede in any way 

any person from competing for or 

obtaining the lease to the Branscome 

Chesapeake yard. This yard is owned by 

a contractor who leases it to other 

companies. Currently, the lessee is 

Florida Rock, which barges coarse 

aggregate to the yard to supply the 

owner’s operations. The lease with 

Florida Rock expires on December 31, 

2007. Paragraph IV(D) is designed to 

ensure that the buyer of the Florida 

Rock Richmond quarry and Florida 

Rock Gilmerton yard divestiture assets, 

or any other interested party, has the 

opportunity to compete for the lease 

upon its expiration. 

The Vulcan quarry under 

development in Butts County is not yet 

operational, but Paragraph IV(F) 

requires Defendants to warrant to the 

Acquirer that they have obtained all 

environmental, zoning, or other permits 

required to begin production of coarse 

aggregate at the Butts site. 

Paragraph IV(J) of the proposed Final 

Judgment provides that the sale of the 

Divestiture Assets may be made to one 

or more Acquirers, except that the 

Richmond quarry and Gilmerton yard 

must be divested to a single acquirer. 

This provision ensures that the owner of 

the barge-served quarry also owns a 

barge-served distribution facility in 

South Hampton Roads so that it can 

compete effectively in South Hampton 

Roads. 

Paragraph IV(J) of the proposed Final 

Judgment also provides that the assets 

must be divested in such a way as to 

satisfy the United States in its sole 

discretion that the operations can and 

will be operated by the purchaser as a 

viable, ongoing business that can 

compete effectively in the relevant 

markets. The provisions of Paragraph IV 

are designed to ensure that Defendants 

take all reasonable steps necessary to 

accomplish the divestitures quickly and 

cooperate with prospective purchasers. 

Finally, Paragraph V of the proposed 

Final Judgment provides that in the 

event that Defendants do not 

accomplish the divestitures within the 

periods prescribed in the proposed 

Final Judgment, the Court will appoint 

a trustee selected by the United States 

to effect the divestitures. If a trustee is 

appointed, the proposed Final Judgment 

provides that Defendants 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 the divestitures 

are accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and the United States setting 

forth his or her efforts to accomplish the 

divestitures. If the divestitures have not 

been accomplished at the end of six 

months, the trustee and the United 

States will make recommendations to 

the Court, which shall enter such orders 

as appropriate in order to carry out the 

purpose of the trust, including 

extending the trust or the term of the 

trustee’s appointment. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

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3The 2004 amendments substituted ‘‘shall’’ for 

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

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006). 

4Cf. BNS, 858 F.2d at 464 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’). See generally 

Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

outside of the ‘reaches of the public interest’ ’’). 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against Defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to the United States written 

comments regarding the proposed Final 

Judgment. Any person who wishes to 

comment should do so within sixty (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement, whichever is later. All 

comments received during this period 

will be considered by the United States 

Department of Justice, which remains 

free to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of the 

United States will be filed with the 

Court and published in the Federal 

Register. 

Written comments should be 

submitted to: Maribeth Petrizzi, Chief, 

Litigation II Section, Antitrust Division, 

United States Department of Justice, 

1401 H St. NW., Suite 3000, 

Washington, DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against Defendants. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against Vulcan’s acquisition 

of Florida Rock. The United States is 

satisfied, however, that the divestiture 

of assets described in the proposed 

Final Judgment will preserve 

competition in the production, 

distribution, and sale of coarse aggregate 

in the relevant geographic markets 

identified by the United States. Thus, 

the proposed Final Judgment would 

achieve all or substantially all of the 

relief the United States would have 

obtained through litigation, but avoids 

the time, expense, and uncertainty of a 

full trial on the merits of the Complaint. 

Vll. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a sixtyday comment period, after which the 

Court shall determine whether entry of 

the proposed Final Judgment ‘‘is in the 

public interest.’’ 15 U.S.C. 16(e)(1). In 

making that determination, the court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

15 U.S.C. 16(e)(1)(A)–(B); see generally 

United States v. SBC Commc’ns, Inc., 

489 F. Supp. 2d 1, 11 (D.D.C. 2007) 

(concluding that the 2004 amendments 

‘‘effected minimal changes’’ to scope of 

review under Tunney Act, leaving 

review ‘‘sharply proscribed by 

precedent and the nature of Tunney Act 

proceedings’’).3

As the United States Court of Appeals 

for the District of Columbia Circuit has 

held, under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s complaint, whether the 

decree is sufficiently clear, whether 

enforcement mechanisms are sufficient, 

and whether the decree may positively 

harm third parties. See United States v. 

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

(DC Cir. 1995). With respect to the 

adequacy of the relief secured by the 

decree, a court may not ‘‘engage in an 

unrestricted evaluation of what relief 

would best serve the public.’’ United 

States v. BNS, Inc., 858 F.2d 456, 462 

(9th Cir. 1988) (citing United States v. 

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

Cir. 1981)); see also Microsoft, 56 F.3d 

at 1460–62. Courts have held that: 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

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. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted). 4 In making 

its public interest determination, a 

district court ‘‘must accord deference to 

the government’s predictions about the 

efficacy of its remedies, and may not 

require that the remedies perfectly 

match the alleged violations because 

this may only reflect underlying 

weakness in the government’s case or 

concessions made during negotiation.’’

SBC Commc’ns, 489 F. Supp. 2d at 17; 

see also Microsoft, 56 F.3d at 1461 

(noting the need for courts to be 

‘‘deferential to the government’s 

predictions as to the effect of the 

proposed remedies’’); United States v. 

Archer-Daniels-Midland Co., 272 F. 

Supp. 2d 1, 6 (D.D.C. 2003) (noting that 

the court should grant due respect to the 

United States’ prediction as to the effect 

of proposed remedies, its perception of 

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Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices 68193 

5See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); S. Rep. No. 93–298, 93d Cong., 

1st Sess., at 6 (1973) (‘‘Where the public interest can 

be meaningfully evaluated simply on the basis of 

briefs and oral arguments, that is the approach that 

should be utilized.’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of 

corrupt failure of the government to discharge its 

duty, the Court, in making its public interest 

finding, should* * * carefully consider the 

explanations of the government in the competitive 

impact statement and its responses to comments in 

order to determine whether those explanations are 

reasonable under the circumstances.’’). 

the market structure, and its views of 

the nature of the case). 

Court approval of a consent decree 

requires a standard more flexible and 

less strict than that appropriate to court 

adoption of a litigated decree following 

a finding of liability. ‘‘[A] proposed 

decree must be approved even if it falls 

short of the remedy the court would 

impose on its own, as long as it falls 

within the range of acceptability or is 

‘within the reaches of public interest.’ ’’

United States v. Am. Tel. & Tel. Co., 552 

F. Supp. 131, 151 (D.D.C. 1982) 

(citations omitted) (quoting United 

States v. Gillette Co., 406 F. Supp. 713, 

716 (D. Mass. 1975)), aff’d sub nom. 

Maryland v. United States, 460 U.S. 

1001 (1983); see also United States v. 

Alcan Aluminum Ltd., 605 F. Supp. 619, 

622 (W.D. Ky. 1985) (approving the 

consent decree even though the court 

would have imposed a greater remedy). 

To meet this standard, the United States 

‘‘need only provide a factual basis for 

concluding that the settlements are 

reasonably adequate remedies for the 

alleged harms.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 17. 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

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

‘‘the court is only authorized to review 

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

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. As this court 

recently confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments, Congress 

made clear its intent to preserve the 

practical benefits of utilizing consent 

decrees in antitrust enforcement, adding 

the unambiguous instruction ‘‘[n]othing 

in this section shall be construed to 

require the court to conduct an 

evidentiary hearing or to require the 

court to permit anyone to intervene.’’ 15 

U.S.C. 16(e)(2). This instruction 

explicitly writes into the statute the 

standard intended by the Congress that 

enacted the Tunney Act in 1974, as 

Senator Tunney then explained: ‘‘[t]he 

court is nowhere compelled to go to trial 

or to engage in extended proceedings 

which might have the effect of vitiating 

the benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Senator Tunney). Rather, 

the procedure for the public interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains 

sharply proscribed by precedent and the 

nature of Tunney Act proceedings.’’

SBC Commc’ns, 489 F. Supp. 2d at 11. 5

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: November 13, 2007. 

Respectfully submitted, 

Robert W. Wilder, Esquire, 

United States Department of Justice, 

Antitrust Division, Litigation II Section, 1401 

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

20530 (202) 307–6336 

[FR Doc. 07–5902 Filed 12–3–07; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Manufacturer of Controlled 

Substances; Notice of Registration 

By Notice dated August 16, 2007, and 

published in the Federal Register on 

August 27, 2007 (72 FR 49018), 

Boehringer Ingelheim Chemicals, Inc., 

2820 N. Normandy Drive, Petersburg, 

Virginia 23805, made application by 

renewal to the Drug Enforcement 

Administration (DEA) to be registered as 

a bulk manufacturer of the basic classes 

of controlled substances listed in 

schedules I and II: 

Drug Schedule 

Tetrahydrocannabinols (7370) ..... I 

Amphetamine (1100) .................... II 

Methylphenidate (1724) ................ II 

Methadone (9250) ........................ II 

Drug Schedule 

Methadone Intermediate (9254) ... II 

Dextropropoxyphene, bulk (nondosage forms) (9273).II 

Fentanyl (9801) ............................ II 

The company plans to manufacture 

the listed controlled substances in bulk 

for sale to its customers for formulation 

into finished pharmaceuticals. 

No comments or objections have been 

received. DEA has considered the 

factors in 21 U.S.C. 823(a) and 

determined that the registration of 

Boehringer Ingelheim Chemicals, Inc. to 

manufacture the listed basic classes of 

controlled substances is consistent with 

the public interest at this time. DEA has 

investigated Boehringer Ingelheim 

Chemicals, Inc. to ensure that the 

company’s registration is consistent 

with the public interest. The 

investigation has included inspection 

and testing of the company’s physical 

security systems, verification of the 

company’s compliance with state and 

local laws, and a review of the 

company’s background and history. 

Therefore, pursuant to 21 U.S.C. 823, 

and in accordance with 21 CFR 1301.33, 

the above named company is granted 

registration as a bulk manufacturer of 

the basic classes of controlled 

substances listed. 

Dated: November 26, 2007. 

Joseph T. Rannazzisi, 

Deputy Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration. 

[FR Doc. E7–23480 Filed 12–3–07; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Manufacturer of Controlled 

Substances; Notice of Registration 

By Notice dated August 16, 2007, and 

published in the Federal Register on 

August 28, 2007, (72 FR 49315–49316), 

Cerilliant Corporation, 811 Paloma 

Drive, Suite A, Round Rock, Texas 

78664, made application by renewal to 

the Drug Enforcement Administration 

(DEA) to be registered as a bulk 

manufacturer of the basic classes of 

controlled substances listed in 

schedules I and II: 

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