13452 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Notices

1The Comments and Responses are attached as

Exhibit A.

2United States v. Bechtel Corp., 1979–1 Trade

Cases (CCH) ¶ 62,430 (N.D. Cal. 1979), aff’d, 648

F.2d 660, 665 (9th Cir. 1981), cert. denied, 454 U.S.

1083 (1982).

Crook, Acting Chief, San Francisco

Office, Antitrust Division, Department

of Justice, 450 Golden Gate Avenue, Box

36046, San Francisco, California 94102

(Telephone: (415) 556–6300).

Constance K. Robinson,

Director of Operations Antitrust Division.

[FR Doc. 95–6050 Filed 3–10–95; 8:45 am]

BILLING CODE 4410–01–M

United States, State of Florida and

State of Maryland, v. Browning Ferris

Industries, Inc.; Public Comments and

Response on Proposed Final

Judgment

Pursuant to the Antitrust Procedures

and Penalties Act, 15 U.S.C. 16(c)–(h),

the United States publishes below the

comments received on the proposed

Final Judgment in United States, State

of Florida and State of Maryland v.

Browning Ferris Industries, Inc., Civil

Action No. 94–2588, filed in the United

States District Court for the District of

Columbia, together with the United

States’ responses to those comments.

Copies of the comments and

responses are available for inspection

and copying in room 3233 of the

Antitrust Division, U.S. Department of

Justice, 10th Street and Pennsylvania

Avenue, N.W., Washington, D.C. and for

inspection and copying at the Office of

the Clerk of the United States District

Court for the District of Columbia,

United States Courthouse, 333

Constitution Avenue, N.W.,

Washington, D.C.

Constance K. Robinson,

Director of Operations.

Comments on the Proposed Final Judgment

and the United States’ Responses to the

Comments

United States of America, State of Florida,

by and through its Attorney General Robert

A. Butterworth, and State of Maryland, by

and through its Attorney General J. Joseph

Curran, Jr., Plaintiffs vs. Browning-Ferris

Industries, Inc., Defendant. Civil Action No.:

1:94CV02588.

Pursuant to the requirements of the

Antitrust Procedures and Penalties Act

(‘‘APPA’’), 15 U.S.C. 16(b)–(h), the United

States hereby files the attached comments on

the proposed Final Judgment in the abovecaptioned civil antitrust proceeding, together

with the United States’ responses to those

comments.

This action was commenced on December

1, 1994, when the United States, the State of

Maryland (‘‘Maryland’’) and the State of

Florida (‘‘Florida’’) filed a Complaint that the

acquisition by Browning-Ferris Industries,

Inc. (‘‘BFI’’) of the ordinary voting shares of

Attwoods plc (‘‘Attwoods’’) violated Section

7 of the Clayton Act because the effects of the

acquisition may be substantially to lessen

competition in interstate trade and commerce

for small containerized hauling services in

the following relevant markets: Baltimore,

MD; Broward County, FL; Chester County,

PA; Clay County, FL; Duval County, FL; Polk

County, FL; the Southern Eastern Shore of

Maryland; Sussex County, DE; and Western

Maryland.

At the same time the United States,

Maryland, and Florida filed a proposed Final

Judgment, a Stipulation signed by the parties

stipulating to entry of the Final Judgment,

and a Hold Separate Stipulation and Order.

Shortly thereafter the United States filed a

Competitive Impact Statement. The proposed

Final Judgment requires BFI to divest certain

Attwoods’ assets in Chester County, PA; Clay

County, FL; Duval County, FL; the Southern

Eastern Shore of Maryland; Sussex County,

DE; and Western Maryland. It also requires

BFI to offer new, less restrictive contracts to

its small containerized hauling customers in

Broward County, FL; Polk County, FL; and

the greater Baltimore, MD metropolitan area.

The Hold Separate Stipulation and Order

requires BFI to preserve, hold, and continue

to operate the assets that may be divested

under the Final Judgment as separate ongoing

businesses. The Stipulation provides that the

proposed Final Judgment may be entered by

the Court after the completion of the

procedures required by the APPA.

The APPA requires a sixty-day period for

the submission of public comments on the

proposed Final Judgment, 15 U.S.C. 16(b). In

this case, the sixty-day comment period

commenced on December 15, 1994 and

terminated on February 13, 1995. During this

period, the United States received two

comments on the proposed Final Judgment.

The United States considered the comments

and sent written responses to the

commenting parties.1

Pursuant to 15 U.S.C. 16(e), the proposed

Final Judgment can be entered only after the

Court determines that the Judgment is in the

public interest. The focus of this

determination is whether the relief provided

by the proposal Final Judgment is adequate

to remedy the antitrust violation alleged in

the Complaint.2

Both comments expressed concern about

the contracts used by BFI with its small

containerized hauling customers. One of the

comments expressed concern that the

contract currently in use by BFI in the greater

Baltimore metropolitan area is one-sided.

The other comment stated that the new

contracts required to be used by BFI in

Broward County, FL under the proposed

Final Judgment were being used by BFI as

marketing tools to the disadvantage of small

haulers. That comment suggested that BFI

should be required to cancel all its existing

contracts immediately and implement the

new contracts all at one time. The comment

went on to suggest that the combination of

BFI and Attwoods’ municipal franchises

would permit BFI to subsidize cheaper prices

in the small containerized hauling service

market to the detriment of other haulers.

The United States explained in its

responses to these comments that, in the

greater Baltimore area, the concern about

BFI’s use of restrictive customer contracts has

been expressly rectified by the proposed

Final Judgment. BFI is required to use less

restrictive customer contracts that do not

have the effects complained of in the

comment. The Department also explained

that, in Broward County, FL, BFI was being

required to phase in the new contracts

rapidly—within one year. The proposed

Final Judgment requires that the new

contracts be made available immediately to

all new customers and all customers signing

new contracts. A one year period to convert

all other customers seemed reasonable in

order to avoid unnecessary confusion and the

probable higher cost of immediately

converting all customers to the new contract.

Finally, the Department explained that using

franchised business, in which municipal

entities solicit bids and award contracts to

serve consumers within their boundaries, to

subsidize the small containerized hauling

market would likely occur only if bidding for

franchises is not competitive. The

Department was not persuaded, given the

number of actual and potential bidders for

municipal franchises in the Florida markets,

that the acquisition raised any concerns in

the market for bidding on municipal

franchises.

After careful consideration of the

comments, the United States continues to

believe that, for the reasons stated in the

responses to the comments and in the

Competitive Impact Statement, the proposed

Final Judgment would be adequate to remedy

the risks to competition presented by the

proposed acquisition and, therefore, the

proposed Final Judgment is in the public

interest.

After the comments and responses have

been published in the Federal Register,

pursuant to 15 U.S.C. 16(d) of the APPA, the

United States will move this Court for entry

of the proposed Final Judgment.

Dated: March 2, 1995.

Respectfully submitted,

Nancy H. McMillen,

Peter H. Goldberg,

Eva Almirantearena,

Attorneys, Antitrust Division, Department of

Justice.

Eastern Trans-Waste of Maryland, Inc.

December 15, 1994.

Anthony V. Nanni,

Chief, Litigation I Section, Antitrust Division,

U.S. Dept. of Justice, 1401 H Street NW.,

Suite 4000, Washington, DC 20530

Re: BFI’s Settlement

Dear Mr. Nanni: As I am sure you are well

aware the matter of EWI’s takeover by BFI is

of grave concern. I am an owner of a small

women-owned refuse business and I am

writing this letter to voice my awareness

regarding various unethical procedures being

practiced by big business. Small business

concerns are being gobbled up by big

business. This development should alert all

interested in economic fairplay, because

these unfair and illegal practices can lead to
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Notices 13453

1The area in Maryland affected by this portion of

the proposed Final Judgment is Anne Arundel

County, Baltimore City, Baltimore County, Calvert

County, Carroll County, Harford County, Howard

County, Montgomery County and Prince George’s

County.

monopoly control and higher prices for the

consumer.

Two such deceitful practices that I would

like to bring to your attention are BFI’s

attempts to restrain trade with their onesided contracts and their new attempt to gain

control by backing a small-disadvantaged

refuse company.

Specifically, Browning-Ferris regularly

restrains trade by having their customers sign

one-sided refuse service agreements. Once

the customer gets into these deceptive

agreements it seems impossible to get out.

Exhibit A

December 6, 1994.

Basically, the contract states that in order

to terminate service you have to give them

sixty day written notice (Certified Mail)

before end of contract date. However, if you

do not give this notice before the sixty day

period the contract means the agreement is

automatically renewed for three years. Being

that most customers do not anticipate a

formidable increase, the notification period

usually passes unnoticed.

So, consequently BFI waits for the sixty

days to pass and then proceeds to inform the

customer the service price will increase. The

increase is usually substantially higher than

the original contract price and when the

customer tries to seek a more competitive

price BFI threatens to sue for the remainder

of the contract. Although there is a contract,

it is unfair and deceptive not allowing the

customer any recourse action once the price

increase is established. Under these

circumstances the customer is able to void

the contract due to deceitful terms, but the

majority of the customers are ignorant to this

fact. To illustrate this matter Fleet

Maintenance, a small business located in

Clinton, Maryland, was engaged in a contract

with BFI and the price was considerably

raised. Fleet proceeded to search for a more

competitive price, so they contacted my

company, Eastern Trans-Waste (ETW). ETW

quoted a price that was fifty percent lower

than BFI’s price. Consequently, Fleet

informed BFI that they would be cancelling

service and if they didn’t like it they would

have to sue them. However, BFI didn’t

attempt to sue, instead they lowered the price

of service, but only to drive out the

competitor. In the majority of similar cases

customers are intimidated by the contract

and feel caught in a legal trap, which results

lead to accepting the higher price. This

depicts how trade is restrained by not

allowing customers to shop for preferable

prices, which seriously demeans our beliefs

that we life in a fair and competitive society.

The other method that reflects the current

situation would be BFI’s attempt to gain

control by backing a small-disadvantaged

refuse business. Bethesda Naval Hospital

recently put out to bid a recycling job which

was offered only to small disadvantaged

concerns. Due to this fact only one company

submitted a bid. Consequently the contract

was awarded to Heritage Recyclers; at an

exorbitant price for the scope of the contract.

Needless to say BFI has furnished all the

equipment on this job with their name on

said equipment and is performing the

services.

As a result BFI has been gaining a larger

market share by utilizing a variety of unfair

and unethical tactics. All of the methods they

employ undermine the long-term interests of

small business in the refuse field. Therefore,

you must see how this takeover of EWI is of

crucial importance to the small business

owner.

Although I have been concentrating on BFI

and their unethical practices, I would like to

point out that Waste Management also

participates in these same methods that

undermine the long-term interests of small

business. Whereas, ETW is only one small

business voicing this complaint there are

others who have had business taken from

them by big business and would be willing

to reveal the scandalous procedures that were

utilized.

Knowing that you are a busy person I

would like to thank you for this opportunity

to express my feelings on this matter and I

look forward to a response.

Sincerely,

Kimberly A. Robb,

President, Eastern Trans-Waste of Maryland,

Inc.

Department of Justice, Antitrust Division

City Center Building, 1401 H Street, NW.,

Washington, DC 20530

March 1, 1995.

AVN: NHM

60–4953–0059

Kimberly A. Robb,

President, Eastern Trans-Waste of Maryland,

Inc., 1402 Richie Marlboro Road, Capitol

Heights, Maryland 20743

Re: United States V. Browning-Ferris

Industries, Inc.; Civ. Action No.:

1:94CV02588 (D.D.C. Dec. 1, 1994)

Dear Ms. Robb: This letter responds to your

letter dated December 15, 1994 commenting

on the proposed Final Judgment in the abovereferenced civil antitrust case, which

challenges the acquisition of the assets of

Attwoods plc (‘‘Attwoods’’) by BrowningFerris Industries, Inc. (‘‘BFI’’). The Complaint

alleges that the acquisition, as originally

structured, violated Section 7 of the Clayton

Act, as amended, 15 U.S.C. § 18, because its

effects may be substantially to lessen

competition in small containerized hauling

services in the following relevant markets:

Baltimore, MD; Broward County, FL; Chester

County, PA; Clay County, FL; Duval County,

FL; Polk County, FL; the Southern Eastern

Shore of Maryland; Sussex County, DE; and

Western Maryland. Under the proposed Final

Judgment, BFI would be required to divest

Attwoods’ assets in Chester County, PA; Clay

County, FL; Duval County, FL; the Southern

Eastern Shore of Maryland; Sussex County,

DE; and Western Maryland. BFI would also

be required to offer new, less restrictive

contracts to its small containerized hauling

customers in Broward County, FL; Polk

County, FL; and the greater Baltimore, MD

metropolitan area.

You expressed concern that BFI regularly

restrains trade by having their customers sign

one-sided refuse service agreements. You

note that once the customer signs one of

these agreements ‘‘it seems impossible to get

out.’’ Letter at p. 1. You specifically mention

a provision requiring the customer to give

BFI written notice 60 days or more before the

end of the contract and that if this date is

missed, the agreement is automatically

renewed for three years. You further state

that, once the contract is renewed, BFI

increases its price to the customer and

threatens to sue the customer if the customer

tries to seek a more competitive price.

The Department believes the proposed

Final Judgment eliminates the concerns

expressed in your letter. Specifically, Parts

VIII A and B of the proposed Final Judgment

require BFI to offer contracts to small

containerized hauling customers in your

area 1 that make it considerably easier for a

customer to benefit from price competition

for that customer’s business. The initial term

of the new contract is only one year (instead

of the three year current term). The renewal

term is only one year, instead of three. The

customer can give notice much later under

the new contract (up to 30 days from the end

of the contract term rather than prior to 60

days from the end of the term), making it

more likely the customer will have time to

terminate the contract should it receive an

attractive offer from a competitor.

Furthermore, the liquidated damages

provision of BFI’s contract has been

substantially decreased from six times the

customer’s average monthly charges. Under

the proposed Final Judgment, customers may

terminate the contract during their first 10

months as a BFI customer by paying only two

times its prior average monthly charges and,

after 10 months, an amount equal to one

month’s average charges. The Department

believes these changes reduce a substantial

barrier to entry into small containerized

hauling service and will increase the

likelihood that the customer will not ’‘feel

caught in a legal trap’’ (letter at p. 2).

Your letter expresses a second concern.

You appear to describe a situation in which

a small business set-aside bid was performed

by BFI, rather than the small business that

was awarded the bid. The acquisition that is

the subject matter of this complaint and

proposed Final Judgment has no effect on the

alleged conduct you describe. This is not the

type of matter that is subject to being

remedied as part of a proposed acquisition

and does not appear to be a matter within the

jurisdiction of the Antitrust Division. The

Department does appreciate your interest in

enforcing the antitrust laws and any

information relevant to that enforcement in

the appropriate forum is welcome.

We appreciate you bringing your concerns

to our attention, and hope that this

information will help to alleviate them. Final

Judgment would adequately safeguard

competition for small containerized hauling

service in the markets alleged in the

complaint. Pursuant to the Antitrust

Procedures and Penalties Act, a copy of your

letter and this response will be published in

the Federal Register and filed with the Court.
13454 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Notices

Sincerely yours,

Anthony V. Nanni,

Chief, Litigation I Section.

Coastal Carting Limited, Inc.

Garbage and Trash Removal, 2316 S.W. 56th

Terrace, West Hollywood, Florida 33021

February 8, 1995.

Anthony V. Nanni,

Chief, Litigation One Section, Anti-Trust

Division, United States Department of

Justice, 1401 H Street, NW., Suite 4000,

Washington, DC 20530

Re: Browning-Ferris Industries, Acquisition

of Attwoods PLC, Civil action No.: 94–

2588, United States of America, State of

Florida, and State of Maryland vs.

Browning-Ferris Industries, Inc., United

States District Court for the District of

Columbia

To Whom It May Concern: I am writing

because I am very concerned about the

acquisition of Attwoods by Browning-Ferris

Industries and its effect upon my business.

Finally, BFI has utilized the Contract that

as attached Exhibit ‘‘B’’ of the proposed Final

Judgment as a marketing tool to discredit the

smaller haulers. BFI is out in the market

place telling the customer if he is not happy

with the service provided by BFI, they can

terminate the contract with minimum cost to

the customer.

My suggestion is to terminate all the

existing agreements immediately and then

have BFI compete with us with them using

the new Contract.

Finally, BFI will be able to subsidize their

competitive commercial work by the monies

made on the ‘‘combined’’ franchises of BFI

and Attwoods allowing BFI to subsidize

competitive prices, thereby, keeping the

small hauler from competing in the market

place where they can compete.

Once again, I am concerned about the

effect this transaction will have on the

market place and my business. Please feel

free to contact me at your earliest

convenience regarding these issues and I

hope you will strongly consider my concerns.

Very truly yours,

Frank D’Agostino,

President, Coastal Carting Ltd., Inc.

Department of Justice Antitrust Division

City Center Building, 1401 H Street, NW.,

Washington, DC 20530

March 1, 1995.

AVN: NHM

60–4953–0059

Frank D’Agostino,

President,

Coastal Carting Limited, Inc.,

2316 SW. 56th Terrace,

West Hollywood, Florida 33021

Re: United States v. Browning-Ferris

Industries, Inc.; Civ. Action No.:

1:94CV02588 (D.D.C. Dec. 1, 1994)

Dear Mr. D’Agostino: This letter responds

to your letter dated February 8, 1995

commenting on the proposed Final Judgment

in the above-referenced civil antitrust case,

which challenges the acquisition of the assets

of Attwoods plc (‘‘Attwoods’’) by BrowningFerris Industries, Inc. (‘‘BFI’’). The Complaint

alleges that the acquisition, as originally

structured, violated Section 7 of the Clayton

Act, as amended, 15 U.S.C. § 18, because its

effects may be substantially to lessen

competition in small containerized hauling

services in the following relevant markets:

Baltimore, MD; Broward County, FL; Chester

County, PA; Clay County, FL; Duval County,

FL; Polk County, FL; the Southern Eastern

Shore of Maryland; Sussex County, DE; and

Western Maryland. Under the proposed Final

Judgment, BFI would be required to divest

Attwoods’ assets in Chester County, PA; Clay

County, FL; Duval County, FL; the Southern

Eastern Shore of Maryland; Sussex County,

DE; and Western Maryland. BFI would also

be required to offer new, less restrictive

contracts to its small containerized hauling

customers in Broward County, FL; Polk

County, FL; and the greater Baltimore, MD

metropolitan area.

Your letter expresses concern that BFI is

using the less restrictive contracts the

proposed Final Judgment requires it to use in

Broward County, FL as a marketing tool to

discredit the smaller haulers. You suggest

that BFI should be required immediately to

terminate all of its existing, more restrictive

contracts, and compete using only the new

contract. The Department considered

requiring BFI to terminate all existing

contracts immediately and to switch all of its

customers to the new contract at once. The

Department believed that this would result in

much confusion and potentially high cost.

Part VIII D of the proposed Final Judgment

requires BFI to offer the new contract to all

new customers and all customers that sign

contracts effective beginning on the date BFI

acquires a majority of the Attwoods’ ordinary

shares. That paragraph also requires that BFI

offer the new contract to all other customers

by December 1, 1995. As a result, BFI is

required to offer the new contract to all of its

Broward County customers within one year

of the filing of the Complaint and proposed

Final Judgment. The Department believes

that this rapid phase-in of the contracts will

enhance competition by getting the contracts

into use quickly, but without the confusion

and cost of an immediate switch of all

customers to the new contract.

You also state that you are concerned that

BFI will be able to subsidize their

competitive commercial work through

monies obtained from franchises previously

controlled by Attwoods. The Department

understands you to be referring to franchises

for residential (and sometimes residential

and commercial) solid waste hauling

periodically put up for bid by municipal

authorities.

Your concern appears to be that combining

Attwoods’ franchises with those already

controlled by BFI will enable BFI to offer

lower prices to its commercial small

containerized hauling customers,

undercutting your ability to compete with

BFI in the commercial small containerized

hauling market. This assumes that BFI will

be able to obtain supracompetitive profits

from the franchises to undercut other firms

in the commercial small containerized

hauling market. This subsidization could

only happen if the bidding for franchises is

not competitive. The Department is not

aware of any evidence that the market for

bidding on franchises in your area is not

competitive.

While we understand your concerns, we

believe that the proposed Final Judgment

would adequately safeguard competition for

small containerized hauling service in the

markets alleged in the Complaint. Pursuant

to the Antitrust Procedures and Penalties

Act, a copy of your letter and this response

will be published in the Federal Register and

filed with the Court.

Sincerely yours,

Anthony V. Nanni,

Chief, Litigation I Section.

Certificate of Service

I hereby certify that on this date I have

caused to be served by first class mail,

postage prepaid, a copy of the foregoing

Comments on the Proposed Final Judgment

and the United States’ Responses to the

Comments upon the following persons,

counsel for defendant in the matter of United

States of America v. Browning-Ferris

Industries, Inc.:

Rufus Wallingford, Esquire, Executive Vice

President and General Counsel, 757 North

Eldridge Street, Houston, Texas 77079,

(713) 870–7670

Martha J. Talley, DC Bar No. 246330, Dewey

Ballantine, 1775 Pennsylvania Ave. NW.,

Washington, DC 20006, (202) 862–1014

Dated: March 2, 1995.

Nancy H. McMillen,

Attorney, Litigation I Section, Antitrust

Division, Department of Justice.

[FR Doc. 95–6045 Filed 3–10–95; 8:45 am]

BILLING CODE 4410–01–M

Drug Enforcement Administration

Robert E. Sylvester, D.O.; Denial of

Application

On June 23, 1994, the Deputy

Assistant Administrator of the Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Robert E. Sylvester,

D.O., (Respondent) of Fairfax, South

Carolina, proposing to deny his

application for a DEA Certificate of

Registration as a practitioner under 21

U.S.C. 823(f). The Order to Show Cause

alleged that Respondent’s registration

would be inconsistent with the public

interest based on Respondent’s lack of

authorization to handle controlled

substances in the State of South

Carolina; that Respondent issued

various controlled substances

prescriptions for himself and others and

such prescriptions were not in the usual

course of his professional practice and

not for a legitimate medical reason; that

he had previously surrendered a DEA

Certificate of Registration for cause; that

he materially falsified an application for