[Federal Register Volume 64, Number 227 (Friday, November 26, 1999)]
[Notices]
[Pages 66492-66500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30791]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. Harsco Corporation, Pandrol Jackson 
Limited, and Pandrol Jackson Inc.; Proposed Final Judgment and 
Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sections 16(b) through (h), that a Complaint, 
Hold Separate Stipulation and Order, and a proposed Final Judgment were 
filed with the United States District Court for the District of 
Columbia in United States of America v. Harsco Corporation, Pandrol 
Jackson Limited, and Pandrol Jackson Inc., Civil No. 99-02706 on 
October 14, 1999. A Competitive Impact Statement was filed on November 
8, 1999. The Complaint alleged that the proposed acquisition of certain 
assets of Pandrol Jackson Limited and Pandrol Jackson Inc. 
(``Pandrol'') by Harsco would violate Section 7 of the Clayton Act, 15 
U.S.C. Section 18, in the markets for switch and crossing and transit 
grinding equipment and switch and crossing grinding services in North 
America. The proposed Final Judgment, filed at the same time as the 
Complaint, requires Harsco, among other things, to: (1) divest all 
assets acquired from Pandrol related to the manufacture and sale of 
switch and crossing grinding equipment; and (2) divest all assets 
acquired from Pandrol related to the providing of switch and crossing 
grinding services.
    A Competitive Impact Statement filed by the United States describes 
the Complaint, the proposed Final Judgment, the industry, and remedies 
to be implemented by Harsco. Copies of the Complaint, Hold Separate 
Stipulation and Order, proposed Final Judgment, and Competitive Impact 
Statement are available for inspection in Room 215 of the U.S. 
Department of Justice, Antitrust Division, 325 7th Street, NW, 
Washington, DC, and at the office of the Clerk of the United States 
District Court for the District of Columbia, Washington, DC. Copies of 
any of these materials may be obtained upon request and payment of a 
copying fee.
    Public comment is invited within the statutory 60-day comment 
period. Such comments and response thereto will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to J. Robert Kramer II, Chief, Litigation II Section, Antitrust 
Division, United States Department of Justice, 1401 H Street, NW, Suite 
3000, Washington, DC 20530 (telephone: 202-307-0924).
Constance K. Robinson,
Director of Operations & Merger Enforcement.

Hold Separate Stipulation and Order

    It is hereby stipulated and agreed by and between the undersigned 
parties, subject to approval and entry by the Court, that:

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Harsco'' means defendant Harsco Corporation, a Delaware 
corporation with its corporate headquarters in Camp Hill, Pennsylvania, 
and includes its successors and assigns, and its subsidiaries, 
divisions, groups, affiliates, partnerships, joint ventures, directors, 
officers, managers, agents, and employees.
    B. ``Charter'' means Charter plc, a United Kingdom corporation, 
with its corporate headquarters in London, England, and includes its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, joint ventures, directors, officers, 
managers, agents, and employees.
    C. ``Pandrol'' means defendant Pandrol Jackson Ltd., a United 
Kingdom corporation, with its corporate headquarters in Surrey, England 
and defendant Pandrol Jackson Inc. with its corporate headquarters in 
Ludington, Michigan, both of which are indirectly owned by Charter, and 
their successors and assigns, and their subsidiaries, divisions, 
groups, affiliates, partnerships, joint ventures, directors, officers, 
managers, agents, and employees; Pandrol submit to the jurisdiction of 
this Court solely for purposes of this action to permit the 
contemplated sale of assets of Harsco; nothing contained herein shall 
be deemed an admission of personal jurisdiction or an appointment of 
any agent for service of process for any other purpose.
    D. ``Switch and Crossing Grinding Equipment'' means rail grinders 
and any related equipment used to remove surface irregularities and 
restore the profile of the rail used in transit systems, railroad track 
switches and railroad track crossings, thereby providing longer rail 
life and reducing the wear on rolling stock and track components.
    E. ``Switch and Crossing Grinding Services'' means switch and 
crossing grinding services provided commercially to railroads and 
transit systems.

[[Page 66493]]

    F. ``Switch and Crossing Grinding Assets'' means all of the assets 
acquired by Harsco from Pandrol related to the Switch and Crossing 
Grinding Equipment manufactured by Pandrol and to the Switch and 
Crossing Grinding Services provided by Pandrol inclusive of all 
tangible and intangible assets used in the manufacture and sale of 
Switch and Crossing Grinding Equipment and the providing of Switch and 
Crossing Grinding Services, including all intellectual property rights, 
technical information, know-how, trade secrets, blueprints, licenses, 
permits, product trade names (other than the ``Jackson'' name), product 
trade dress, tooling, existing inventory and work in progress, accounts 
receivable, pertinent correspondence, files and databases, books of 
account, customer lists, supplier lists, advertising materials, 
contracts with third parties (to the extent assignable), but not 
including any manufacturing or assembly facility, or any real estate 
owned or leased by Harsco or Pandrol.

II. Objectives

    The proposed Final Judgment filed in this case is meant to ensure 
Harsco's prompt divestiture of the Switch and Crossing Grinding Assets 
for purposes of creating a viable competitor in the manufacture and 
sale of switch and crossing grinding equipment and services. This Hold 
Separate Stipulation and Order ensures the timely and complete transfer 
of these assets and maintains the separation of Harsco's and Pandrol's 
switch and crossing grinding businesses as independent, viable 
competitors until the required divestiture is complete.

III. Jurisdiction and Venue

    The Court has jurisdiction over the subject matter of this action 
and over each of the parties hereto, and venue of this action is proper 
in the United States District Court for the District of Columbia.

IV. Compliance With and Entry of Final Judgment

    A. The parties stipulate that a proposed Final Judgment in the form 
attached hereto may be filed with and entered by the Court, upon the 
motion of any party or upon the Court's own motion, at any time after 
compliance with the requirements of the Antitrust Procedures and 
Penalties Act (15 U.S.C. 16), and without further notice to any party 
or other proceedings, provided that the United States has not withdrawn 
its consent, which it may do at any time before entry of the proposed 
Final Judgment by serving notice thereof on defendants and by filing 
that notice with the Court.
    B. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment, pending the Judgment's entry by the Court, or 
until expiration of time for all appeals of any Court ruling declining 
entry of the proposed Final Judgment, and shall, from the date of the 
signing of this Stipulation by the parties, comply with all the terms 
and provisions of the proposed Final Judgment as though the same were 
in full force and effect as an order of the Court.
    C. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    D. In the event (1) the United States has withdrawn its consent, as 
provided in Section IV(A) above, or (2) the proposed Final Judgment is 
not entered pursuant to this Stipulation, the time has expired for all 
appeals of any Court ruling declining entry of the proposed Final 
Judgment, and the Court has not otherwise ordered continued compliance 
with the terms and provisions of the proposed Final Judgment, then the 
parties are released from all further obligations under this 
Stipulation, and the making of this Stipulation shall be without 
prejudice to any party in this or any other proceeding.
    E. Harsco represents that the divestitures ordered in the proposed 
Final Judgment can and will be made, and that it will later raise no 
claim of hardship or difficulty as grounds for asking the Court to 
modify any of the divestiture provisions contained therein.

V. Hold Separate Provisions

    A. Harsco shall preserve, maintain, and operate the Switch and 
Crossing Grinding Assets as an independent competitive business, with 
management, research, development, production, sales and operation of 
such assets held entirely separate, distinct and apart from those of 
Harsco. Harsco shall not coordinate its production, marketing or sale 
of any products with that of any of the Switch and Crossing Grinding 
Assets, except to the limited extent provided in this Section V below. 
Within fifteen (15) days of the entering of this Order, Harsco will 
inform the United States of the steps taken to comply with this 
provision.
    B. Harsco shall take all steps necessary to ensure that the Switch 
and Crossing Grinding Assets will be maintained and operated as an 
independent, ongoing, economically viable and active competitor in the 
development, production and sale of their respective products and 
services, that the management of the Switch and Crossing Grinding 
Assets will not be influenced by Harsco, and that the books, records, 
competitively sensitive sales, marketing and pricing information, and 
decision-making associated with the Switch and Crossing Grinding 
Assets, including the performance and decision-making functions 
regarding internal research and development, sales and pricing, will be 
kept separate and apart from the business of Harsco. Harsco's influence 
over the Switch and Crossing Grinding Assets shall be limited to that 
necessary to carry out Harsco's obligations under this Order and the 
proposed Final Judgment.
    C. Harsco shall provide and maintain sufficient working capital to 
maintain the Switch and Crossing Grinding Assets as a viable, ongoing 
business, consistent with current business plans.
    D. Harsco shall provide and maintain sufficient lines and sources 
of credit to maintain the Switch and Crossing Grinding Assets as a 
viable, ongoing business.
    E. Harsco shall maintain, on behalf of the Switch and Crossing 
Grinding Assets, in accordance with sound accounting practices, 
separate, true and complete financial ledgers, books and records 
reporting the profit and loss and liabilities of the business on a 
monthly and quarterly basis.
    F. Harsco shall use all reasonable efforts to maintain and increase 
the sales of the Switch and Crossing Grinding Assets to be divested, 
such as maintaining at 1998 or previously approved levels for 1999, 
whichever are higher, internal research and development funding, sales, 
marketing, and support for the Switch and Crossing Grinding Assets.
    G. Harsco shall not sell, lease, assign, transfer or otherwise 
dispose of, or pledge as collateral for loans, assets that may be 
required to be divested pursuant to the Final Judgment.
    H. Harsco shall preserve the assets that may be required to be 
divested pursuant to the Final Judgment in a state of repair equal to 
their state of repair as of the date of this Order, ordinary wear and 
tear excepted.
    I. Except in the ordinary course of business or as is otherwise 
consistent with this Order, Harsco shall not transfer or terminate, or 
alter, to the detriment of any employee, any current employment or 
salary agreements for any employee who, on the date of entry of this 
Order, works for the Switch and Crossing Assets. Harsco shall not 
solicit

[[Page 66494]]

to hire any individual who, on the date of entry of this Order, was an 
employee of any of the assets to be divested under the proposed Final 
Judgment.
    J. Within ten (10) days of the filing of this Hold Separate 
Stipulation and Order, Harsco shall appoint one or more persons who 
shall have complete managerial responsibility for the Switch and 
Crossing Grinding Assets, subject to the provisions of this Order and 
the proposed Final Judgment, until such time as this Order is 
terminated. In the event that such manager(s) is unable to perform his 
or her duties, Harsco shall appoint from the current management of the 
Switch and Crossing Grinding Assets, subject to the plaintiff's 
approval, a replacement within ten (10) working days. Should Harsco 
fail to initially appoint a manager acceptable to the United States, or 
fail to appoint any replacement required within ten (10) working days, 
the United States shall appoint the manager.
    K. Harsco shall take no action that would interfere with the 
ability of any trustee appointed pursuant to the proposed Final 
Judgment to complete the divesture pursuant to the proposed Final 
Judgment to a suitable purchaser.
    L. This Order shall remain in effect until the divestiture of the 
Switch and Crossing Grinding Assets required by the proposed Final 
Judgment is complete, or until further Order of the Court.

    Dated: October 14, 1999.

    For Plaintiff United States of America:
John F. Greaney, Esquire
U.S. Department of Justice, Antitrust Division, Litigation II Section, 
1401 H Street, N.W., Suite 3000, Washington, D.C. 20005, (202) 305-
9965.

    For Defendant Harsco Corporation:
Dale Hershey, Esquire
Timi E. Nickerson, Esquire, DC Bar #457231, Eckert Seamans Cherin & 
Mellott, LLC, USX Tower, 600 Grant Street, 44th Floor, Pittsburgh, PA 
15219, (412) 566-6058.

    For Defendants Pandrol Jackson Limited, and Pandrol Jackson 
Inc.:
Wayne Dale Collins, Esquire
DC Bar #430266, Shearman & Sterling, 599 Lexington Ave., New York, NY 
10022-6069, (212) 848-4127.

    IT IS ORDERED by the Court, this ____ day of October, 1999.
Alt--------------------------------------------------------------------
United States District Judge

Final Judgment

    Whereas, plaintiff, the United States of America, and defendants 
Harsco Corporation (``Harsco''), Pandrol Jackson Limited, and Pandrol 
Jackson Inc. (collectively ``Pandrol''), by their respective attorneys, 
having consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law herein, and without this Final 
Judgment constituting any evidence against or an admission by any party 
with respect to any issue of law or fact herein; and having consented 
that this Final Judgment shall settle all claims made by plaintiff in 
its Complaint filed October 14, 1999;
    And whereas, defendants have agreed 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, in the event of 
the acquisition of certain assets of Pandrol by Harsco, the prompt and 
certain divestiture of the identified assets to assure that competition 
is not substantially lessened;
    And whereas, plaintiff requires defendant Harsco to make a 
divestiture for the purpose of establishing a viable competitor in the 
manufacture and sale of switch and crossing grinding equipment and 
services specified in the Complaint.
    And whereas, defendant Harsco has represented to the plaintiff that 
the divestiture ordered herein can and will be made and that defendants 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
below;
    Now, therefore, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ordered, adjudged, and 
decreed as follows:

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and 
over the subject matter of this action. The Complaint states a claim 
upon which relief may be granted against defendants, as hereinafter 
defined, under Section 7 of the Clayton Act, as amended, 15 U.S.C. 18.

II. Definitions

    As used in this Final Judgment:
    A. ``Harsco'' means defendant Harsco Corporation, a Delaware 
corporation with its corporate headquarters in Camp Hill, Pennsylvania, 
and includes its successors and assigns, and its subsidiaries, 
divisions, groups, affiliates, partnerships, joint ventures, directors, 
officers, managers, agents, and employees.
    B. ``Charter'' means defendant Charter plc, a United Kingdom 
corporation, with its corporate headquarters in London, England, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, partnerships, joint ventures, directors, officers, 
managers, agents and employees.
    C. ``Pandrol'' means defendant Pandrol Jackson Limited, a United 
Kingdom corporation, with its corporate headquarters in Surrey, England 
and defendant Pandrol Jackson Inc., with its corporate headquarters in 
Lundington, Michigan, both of which are indirectly owned by Charter, 
and their successors and assigns, and their subsidiaries, divisions, 
groups, affiliates, partnerships, joint ventures, directors, officers, 
managers, agents, and employee: Pandrol submit to the jurisdiction of 
this Court solely for purposes of this action to permit the 
contemplated sale of assets of Harsco; nothing contained herein shall 
be deemed an admission of personal jurisdiction or an appointment of 
any agent for service of process for any other purpose.
    D. ``Switch and Crossing Grinding Equipment'' means rail grinders 
and any related equipment used to remove surface irregularities and 
restore the profile of the rail used in transit systems, railroad track 
switches and railroad track crossings, thereby providing longer rail 
life and reducing the wear on rolling stock and track components.
    E. ``Switch and Crossing Grinding Services'' means switch and 
crossing grinding services provided commercially to railroads and 
transit systems.
    F. ``Switch and Crossing Grinding Assets'' means all of the assets 
acquired by Harsco from Pandrol related to the Switch and Crossing 
Grinding Equipment manufactured by Pandrol and to the Switch and 
Crossing Grinding Services provided by Pandrol inclusive of all 
tangible and intangible assets used in the manufacture and sale of 
Switch and Crossing Grinding Equipment and the providing of Switch and 
Crossing Grinding Services, including all intellectual property rights, 
technical information, know-how, trade secrets, blueprints, licenses, 
permits, product trade names (other than the ``Jackson'' name), product 
trade dress, tooling, existing inventory and work in progress, accounts 
receivable, pertinent correspondence, files and databases, books of 
account, customer lists, supplier lists, advertising materials, 
contracts with third parties (to the extent assignable), but not 
including any manufacturing or assembly facility, or any real estate 
owned or leased by Harsco or Pandrol.

[[Page 66495]]

III. Applicability

    A. The provisions of this Final Judgment apply to the defendants, 
their successors and assigns, subsidiaries, directors, officers, 
managers, agents, and employees, and all other persons in active 
concert or participation with any of them who shall have received 
actual notice of this Final Judgment by personal service or otherwise.
    B. Defendant Harsco shall require, as a condition of the sale of 
all or substantially all of its assets or of its Switch and Crossing 
Grinding Equipment and Services business, that the purchaser or 
purchasers agree to be bound by the provisions of this Final Judgment.

IV. Divestiture

    A. Defendant Harsco is hereby ordered and directed, in accordance 
with the terms of this Final Judgment, within thirty (30) calendar days 
after the filing of the Hold Separate Stipulation and Order in this 
case, to sell the Switch and Crossing Grinding Assets as a viable 
ongoing business to a purchaser acceptable to the United States in its 
sole discretion.
    B. Defendant Harsco shall use its best efforts to accomplish said 
divestiture as expeditiously as possible. The United States, in its 
sole discretion, may extend the time for the divestiture for an 
additional period not to exceed thirty (30) calendar days.
    C. In accomplishing the divestiture ordered by this Final Judgment, 
defendant Harsco shall make known promptly, by usual and customary 
means, the availability of the Switch and Crossing Grinding Assets. 
Defendant Harsco shall inform any person making an inquiry regarding a 
possible purchase that the sale is being made pursuant to this Final 
Judgment and provide such person with a copy of this Final Judgment. 
Defendant Harsco shall also offer to furnish to all prospective 
purchasers, subject to customary confidentiality assurances, all 
information regarding these assets customarily provided in a due 
diligence process, except such information as is subject to attorney-
client privilege or attorney work-product privilege. Defendant Harsco 
shall make such information available to the United States at the same 
time that such information is made available to any other person.
    D. As customarily provided as part of a due diligence process, 
defendant Harsco shall permit prospective purchasers of the Switch and 
Crossing Grinding Assets to have access to personnel and to make 
inspection of such assets and any and all financial, operational, or 
other documents and information.
    E. Defendant Harsco shall not interfere with any negotiations by 
any purchaser to employ any current or former Pandrol employee who 
works or has worked at, or whose principal responsibility concerns or 
has concerned, any aspect of the Switch and Crossing Grinding Assets.
    F. Defendant Harsco shall not take any action, direct or indirect, 
that would impede in any way the operation of any business connected 
with the assets to be divested, or take any action, direct or indirect, 
that would impede the divestiture of any such asset.
    G. Defendant Harsco shall warrant to the purchaser of the Switch 
and Crossing Grinding Assets that the assets will be operational on the 
date of sale.
    H. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, whether by defendant Harsco or by 
trustee appointed pursuant to Section VI of this Final Judgment, shall 
include the entire Switch and Crossing Grinding Assets. Such 
divestiture shall be accomplished by selling or otherwise conveying the 
assets to a purchaser or purchasers in such a way as to satisfy the 
United States, in its sole discretion, that the assets can and will be 
used by the purchaser as a viable ongoing business, engaged in the 
switch and crossing grinding business. The divestiture, whether 
pursuant to Section IV or Section VI of this Final Judgment, shall be 
made to a purchaser who, as demonstrated to the United States' sole 
satisfaction: (1) Has the capability and intent of competing 
effectively in the switch and crossing grinding business; (2) has or 
soon will have the managerial, operational, and financial capability to 
compete effectively in the switch and crossing grinding business; and 
(3) is not hindered by the terms of any agreement between the purchaser 
and defendant Harsco which gives defendant Harsco the ability 
unreasonably to raise the purchaser's costs, lower the purchaser's 
efficiency, or otherwise interfere with the ability of the purchaser to 
compete.

V. Notice of Proposed Divestiture

    Within two (2) business days following execution of a definitive 
agreement, contingent upon compliance with the terms of this Final 
Judgment, to effect, in whole or in part, the proposed divestiture 
pursuant to Section IV or VI of this Final Judgment, defendant Harsco 
or the trustee, whichever is then responsible for effecting the 
divestiture, shall notify the United States of the proposed 
divestiture. The notice shall set forth the details of the proposed 
transaction and shall list the name, address, and telephone number of 
each person not previously identified who offered to, or expressed an 
interest in or a desire to, acquire any ownership interest in the 
business to be divested that is the subject of the binding contract, 
together with full details of same. Within fifteen (15) calendar days 
of receipt by the United States of a divestiture notice, the United 
States, in its sole discretion, may request from defendant Harsco, the 
proposed purchaser, or any other third party additional information 
concerning the proposed divestiture and the proposed purchaser. 
Defendant Harsco and the trustee shall furnish any additional 
information requested from them within fifteen (15) calendar days of 
the receipt of the request, unless the parties shall otherwise agree. 
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 the defendant Harsco, the 
proposed purchaser, and any third party, whichever is later, the United 
States shall provide written notice to defendant Harsco and the 
trustee, if there is one, stating whether or not it objects to the 
proposed divestiture. If the United States provides written notice to 
defendant Harsco (and the trustee, if applicable) that it does not 
object, then the divestiture may be consummated, subject only to 
defendant Harsco's limited right to object to the sale under Section 
VI(B) of this Final Judgment. Upon objection by the United States, a 
divestiture proposed under Section IV or Section VI may not be 
consummated. Upon objection by defendant Harsco under the provision in 
Section VI(B), a divestiture proposed under Section VI shall not be 
consummated unless approved by the Court.

VI. Appointment of Trustee

    A. In the event that defendant Harsco has not divested the Switch 
and Crossing Grinding Assets within the time period specified in 
Section IV of this Final Judgment, the Court shall appoint, on 
application of the United States, a trustee selected by the United 
States in its sole discretion, to effect the divestiture of such 
assets. The trustee shall have the right, in its sole discretion, and 
upon notice to the defendant Harsco and approval of the United States, 
to require the divestiture of additional related assets reasonably 
necessary to divest the Switch and

[[Page 66496]]

Crossing Grinding Assets as a viable stand-alone business. In any such 
event, all of the obligations of the defendant Harsco under the Final 
Judgment shall apply to the additional assets as well.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to divest the assets. The trustee shall 
have the power and authority to accomplish the divestiture of the 
assets at the best price then obtainable upon a reasonable effort by 
the trustee, subject to the provisions of Sections IV and VI of this 
Final Judgment, and shall have such other powers as the Court shall 
deem appropriate. Subject to Section VI(C) of this Final Judgment, the 
trustee shall have the power and authority to hire at the cost and 
expense of the defendant Harsco any investment bankers, attorneys, or 
other agents reasonably necessary in the judgment of the trustee to 
assist in the divestiture, and such professionals and agents shall be 
accountable solely to the trustee. The trustee shall have the power and 
authority to accomplish the divestiture at the earliest possible time 
to a purchaser or purchasers acceptable to the United States, in its 
sole discretion, and shall have such other powers as the Court shall 
deem appropriate. Defendant Harsco shall not object to a divestiture by 
the trustee on any ground other than the trustee's malfeasance. Any 
such objections by defendant Harsco 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 V of this Final 
Judgment.
    C. The trustee shall serve at the cost and expense of defendant 
Harsco, on such terms and conditions as the Court may prescribe and 
shall account for all monies derived from the sale of the assets sold 
by the trustee, and all costs and expenses so incurred. After approval 
by the Court of the trustee's accounting, including fees for its 
services and those of any professionals and agents retained by the 
trustee, all remaining money shall be paid to defendant Harsco and the 
trust shall then be terminated. The compensation of such trustee and of 
any professionals and agents retained by the trustee shall be 
reasonable in light of the value of the divested 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.
    D. Defendant Harsco shall use its best efforts to assist the 
trustee in accomplishing the required divestiture, including its best 
efforts to effect all necessary regulatory approvals. 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 relating to the assets to be divested, 
and defendant Harsco shall develop such financial or other information 
relevant to the assets to be divested customarily provided in a due 
diligence process as the trustee may reasonably request, subject to 
customary confidentiality assurances. Defendant Harsco shall permit 
prospective purchasers of the Switch and Crossing Grinding Assets, or 
other assets being sold by the trustee, to have reasonable access to 
personnel and to make such inspection of physical facilities and any 
and all financial, operational or other documents and other information 
as may be relevant to the divestiture required by this Final Judgment.
    E. After its appointment, the trustee shall file monthly reports 
with the plaintiff, defendant Harsco, and the Court setting forth the 
trustee's efforts to accomplish the divestiture ordered under this 
Final Judgment; provided, however, that to the extent such reports 
contain information that the trustee deems confidential, such reports 
shall not be filed in the public docket of the Court. Such reports 
shall include the name, address and telephone number of each person 
who, during the preceding month, made an offer to acquire, expressed an 
interest in acquiring, entered into negotiations to acquire, or was 
contacted or made an inquiry about acquiring, any interest in any of 
the assets to be divested, and shall describe in detail each contact 
with any such person during that period. The trustee shall maintain 
full records of all efforts made to sell the assets to be divested.
    F. If the trustee has not accomplished such divestiture within six 
(6) months after its appointment, the trustee thereupon shall file 
promptly with the Court a report setting forth (1) The trustee's 
efforts to accomplish the required divestiture, (2) the reasons, in the 
trustee's judgment, why the required divestiture has not been 
accomplished, and (3) the trustee's recommendations; provided, however, 
that to the extent such reports contain information that the trustee 
deems confidential, such reports shall not be filed in the public 
docket of the Court. The trustee shall at the same time furnish such 
report to the plaintiff and defendant Harsco, who shall each have the 
right to be heard and to make additional recommendations consistent 
with the purpose of the trust. The Court shall enter thereafter such 
orders as it shall deem appropriate in order to carry out the purpose 
of the trust which may, if necessary, include extending the trust and 
the term of the trustee's appointment for a period of time requested by 
the United States.

VII. Affidavits

    A. Within twenty (20) calendar days of the filing of the Hold 
Separate Stipulation and Order in this matter and every thirty (30) 
calendar days thereafter until the divestiture has been completed 
pursuant to Section IV or VI of this Final Judgment, defendant Harsco 
shall deliver to the United States an affidavit as to the fact and 
manner of compliance with Section IV or VI of this Final Judgment. Each 
such affidavit shall include, inter alia, the name, address, and 
telephone number of each person who, at any time after the period 
covered by the last such report, 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 
assets to be divested, 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 that defendant Harsco has taken to 
solicit a buyer for any and all of the Switch and Crossing Grinding 
Assets and to provide required information to prospective purchasers, 
including the limitations, if any, on such information.
    B. Within twenty (20) calendar days of the filing of the Hold 
Separate Stipulation and Order in this matter, defendant Harsco shall 
deliver to plaintiff an affidavit which describes in detail all actions 
defendant Harsco has taken and all steps defendant Harsco has 
implemented on an ongoing basis to preserve the Switch and Crossing 
Grinding Assets, pursuant to Section VIII of this Final Judgment and 
the Hold Separate Stipulation and Order entered by the Court. The 
affidavit also shall describe, but not be limited to, defendant 
Harsco's efforts to maintain and operate the Switch and Crossing 
Grinding Assets as an active competitor, maintain the management, 
staffing, sales, marketing and pricing of such assets, and maintain the 
assets in operable condition at current capacity configurations. 
Defendant Harsco shall deliver to plaintiff an affidavit describing any 
changes to the efforts and actions outlined in defendant Harsco's 
earlier affidavit(s) filed pursuant to Section VII.B. within fifteen 
(15) calendar days after the change is implemented.
    C. Until one year after such divestiture has been completed, 
defendant Harsco shall preserve all records of all efforts made to 
preserve

[[Page 66497]]

the Switch and Crossing Grinding Assets and to effect the ordered 
divestiture.

VIII. Hold Separate Order

    Until the divestiture required by the Final Judgment has been 
accomplished, defendant Harsco shall take all steps necessary to comply 
with the Hold Separate Stipulation and Order entered by this Court. 
Defendant Harsco shall take no action that would jeopardize the sale of 
the Switch and Crossing Grinding Assets.

IX. Financing

    Defendant Harsco is ordered and directed not to finance all or any 
part of any acquisition made pursuant to Sections IV or VI of this 
Final Judgment.

X. Notification of Future Acquisitions

    Unless such transaction is otherwise subject to the reporting and 
waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvement Act of 1976, as amended, 15 U.S.C. 18a (the ``HSR Act''), 
defendant Harsco, without providing advance notification to Department 
of Justice, shall not directly or indirectly acquire any assets of or 
any interest, including any financial, security, loan, equity or 
management interest, in any person that, at any time during the twelve 
(12) months immediately preceding such acquisition, was engaged in the 
manufacture or sale of Switch and Crossing Grinding Equipment or the 
provision of Switch and Crossing Grinding Services. Such notification 
shall be provided to the Department of Justice in the same format as, 
and per the instructions relating to the Notification and Report Form 
set forth in the Appendix to Part 803 of Title 16 of the Code of 
Federal Regulations as amended. Notification shall be provided at least 
thirty (30) days prior to acquiring any such interest, and shall 
include, beyond what may be required by the applicable instructions, 
the names of the principal representatives of the parties to the 
agreement who negotiated the agreement, and any management or strategic 
plans discussing the proposed transaction. If within the 30-day period 
after notification, representatives of the Department of Justice make a 
written request for additional information, defendant Harsco shall not 
consummate the proposed transaction or agreement until (20) days after 
submitting all such additional information. Early termination of the 
waiting periods in this paragraph may be requested and, where 
appropriate, granted in the same manner as is applicable under the 
requirements and provisions of the HSR Act and rules promulgated 
thereunder. This Section shall be broadly construed and any ambiguity 
or uncertainty regarding the filing of notice under this Section shall 
be resolved in favor of filing notice.

XI. Compliance Inspection

    For purposes of determining or securing compliance with the Final 
Judgment and subject to any legally recognized privilege, from time to 
time:
    A. Duly authorized representatives of the United States Department 
of Justice, upon written request of the Assistant Attorney General in 
charge of the Antitrust Division, and on reasonable notice to defendant 
Harsco made to its principal office, shall be permitted:
    (1) Access during office hours of defendant Harsco to inspect and 
copy all books, ledgers, accounts, correspondence, memoranda, and other 
records and documents in the possession or under the control of 
defendant Harsco, who may have counsel present, relating to the matters 
contained in this Final Judgment; and
    (2) Subject to the reasonable convenience of defendant Harsco and 
without restraint or interference from it, to interview, either 
informally or on the record, its officers, employees, and agents, who 
may have counsel present, regarding any such matters.
    B. Upon the written request of the Attorney General or the 
Assistant Attorney General in charge of the Antitrust Division, 
defendant Harsco shall submit such written reports, under oath if 
requested, with respect to any matter contained in the final Judgment 
and the Hold Separate Stipulation and Order.
    C. No information or documents obtained by the means provided in 
Sections VI, VII, or XI of this Final Judgment shall be divulged by a 
representative of the United States to any person other than a duly 
authorized representative of the Executive Branch of the United States, 
except in the course of legal proceedings to which the United States is 
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 
defendant Harsco to the United States, defendant Harsco represents and 
identifies in writing the material in any such information or documents 
as to which a claim of protection may be asserted under Rule 26(c)(7) 
of the Federal Rules of Civil Procedure, and defendant Harsco marks 
each pertinent page of such material, ``subject to claim of protection 
under Rule 26(c)(7) of the Federal Rules of Civil Procedure,'' then ten 
(10) calendar days' notice shall be given by the United States to 
defendant Harsco prior to divulging such material in any legal 
proceeding (other than a grand jury proceeding) to which defendant 
Harsco is not a party.

XII. Retention of Jurisdiction

    Jurisdiction is retained by this Court for the purpose of enabling 
any of the parties to this Final Judgment to apply to this Court at any 
time for such further orders and directions as may be necessary or 
appropriate for the construction or carrying out of this Final 
Judgment, for the modification of any of the provisions hereof, for the 
enforcement of compliance herewith, and for the punishment of any 
violations hereof.

XIII. Termination

    Unless this Court grants an extension, this Final Judgment will 
expire upon the tenth anniversary of the date of its entry.

XIV. Public Interest

    Entry of this Final Judgment is in the public interest.

    Dated ____________________, 1999.
----------------------------------------------------------------------
United States District Judge

Competitive Impact Statement

    The United States, pursuant to Section 2(b) of the Antitrust 
Procedures and Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), files 
this competitive Impact Statement relating to the proposed Final 
Judgment submitted for entry in this civil antitrust proceeding.

Nature and Purpose for the Proceeding

    On October 14, 1999, the United States filed a civil antitrust 
Complaint alleging that the proposed acquisition of assets of Pandrol 
Jackson Limited and Pandrol Jackson Inc. (collectively ``Pandrol'') by 
Harsco Corporation (``Harsco'') would violate Section 7 of the Clayton 
Act, 15 U.S.C. 18, with respect to the manufacture an sale of switch 
and crossing and transit grinding equipment and the provision of switch 
and crossing and transit grinding services to railroads and transit 
systems throughout North America. The Complaint alleges that Harsco and 
Pandrol are the only two producers of such equipment and providers of 
such services in North America. The request for relief seeks: (1) A 
judgment that the proposed acquisition would violate Section 7 of the 
Clayton Act; (2) injunctive relief preventing

[[Page 66498]]

consummation of the proposed acquisition; (3) an award of costs to the 
plaintiff; and (4) such other relief as the Court may deem just and 
proper.
    When the Complaint was filed, the United States also filed a 
proposed Final Judgment and a Hold Separate Stipulation and Order that 
wool settle the lawsuit. The proposed settlement permits Harsco to 
acquire the assets of Pandrol, but requires a divestiture that will 
preserve competition in the relevant product markets alleged in the 
Complaint. The proposed Final Judgment requires the defendants to 
divest switch and crossing grinding assets, as defined in the proposed 
Final Judgment, acquired by Harsco from Pandrol related to the switch 
and crossing grinding equipment manufactured by Pandrol and to the 
switch and crossing grinding services provided by Pandrol. Switch and 
crossing grinding equipment manufactured by Pandrol includes rail 
grinders and any related equipment used to remove surface 
irregularities and to restore the profile of the rail used in transit 
systems, railroad track switches and railroad track crossings. Switch 
and crossing grinding services includes such services provided by 
contract to railroads and transit systems. Defendants must accomplish 
this divestiture within thirty (30) calendar days after the filing of 
the proposed Final Judgment to a purchaser acceptable to the Antitrust 
Division of the United States Debarment of Justice (``DOJ''). If the 
defendants do not do so within the time frame in the proposed Final 
Judgment, a trustee appointed by the Court would be empowered for an 
additional six months to sell those assets. If the trustee is unable to 
do so in that time, the Court could enter such orders as it shall deem 
appropriate to carry out the purpose of the trust which may, if 
necessary, include extending the trust and the trustee's appointment by 
a period requested by the United States.
    In addition, under the terms of the Hold Separate Stipulation and 
Order, the defendants must hold specified assets to be divested 
separate and apart from its other businesses until the required 
divestiture has been accomplished. Defendants must, until the required 
divestiture is accomplished, preserve and maintain the specified assets 
to be divested as saleable and economically viable ongoing concerns.
    The parties have stipulated that the proposed Final Judgment may be 
entered after compliance with the APPA. Entry of the proposed Final 
Judgment would terminate the action, except that the Court would retain 
jurisdiction to construe, modify, or enforce the provisions of the 
proposed Final Judgment and to punish violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction
    Harsco is a Delaware corporation, with its corporate headquarters 
and principal place of business in Camp Hill, Pennsylvania. In 1998, 
Harsco reported revenues of $1.7 billion. It manufactures switch and 
crossing grinding equipment in Fairmont, Minnesota. In 1998, its sales 
of switch and crossing grinding services were about $3.7 million in 
North America, with about $3.2 million of this amount to customers in 
the United States.
    Charter plc (``Charter'') is a corporation organized and existing 
under the laws of the United Kingdom. In 1998, it had revenues of 
approximately $2 billion. Charter controls Pandrol Jackson Limited and 
Pandrol Jackson Inc. (collectively ``Pandrol'') through a wholly owned 
subsidiary. Pandrol Jackson Limited maintains its principal place of 
business in Surrey, United Kingdom. Pandrol Jackson Inc. is a Delaware 
corporation, with its corporate headquarters and principal place of 
business in Ludington, Michigan. Pandrol manufactures rail grinders at 
its plant in Ludington, Michigan. During 1998, Pandrol had sales of 
about $101 million, including $5.7 million in sales of switch and 
crossing grinding services and equipment in North America, $4.3 million 
of which was from sales to customers in the United States.
    On or about January 30, 1998, Harsco entered into an Asset Purchase 
and Liability Assumption Agreement (``Agreement'') with Charter to 
acquire the switch and crossing and transit grinding equipment and the 
switch and grinding services of Pandrol for consideration equal to 
about $89 million. This transaction, which would give Harsco a monopoly 
of the manufacture and sale of switch and crossing grinding equipment 
(including transit grinders) and of switch and crossing grinding 
services in North America, precipitated the government's suit.
B. The Market
    Rail grinders are used because, over time, the rubbing of train 
wheels on the tracks deforms the profile of the rails. These 
deformations, if allowed to continue, cause the rail to wear out 
prematurely. Switch and crossing grinders are designed to restore the 
rail used in railroad track switches and railroad track crossings to 
its original shape, thereby prolonging its useful life. Transit 
grinders are smaller grinders, like switch and crossing grinders, which 
are used to perform the same function of restoring rail for transit 
systems. Although transit systems in North America typically purchase 
transit grinders, railroads usually contract for grinding services from 
providers of switch and crossing grinding services. Harsco and Pandrol 
are the only providers of these services in North America. No imports 
of switch and crossing and transit grinders are made into North America 
and switch and crossing grinding services are provided throughout North 
America only by firms that manufacture such grinders in the United 
States.
C. Harm to Competition as a Result of the Proposed Transaction
    Harsco and Pandrol compete with each other in the production and 
sale of switch and crossing and transit grinders and in providing 
switch and crossing grinding services in North America--a market which 
is now highly concentrated and which would become a monopoly as a 
result of the proposed acquisition. Harsco and Pandrol are the only two 
producers of this equipment, and the only suppliers of these services. 
The proposed transaction would eliminate the direct competition between 
Harsco and Pandrol that has benefited consumers, and likely lead to 
higher prices.
    Moreover, new entry into the production and sale of switch and 
crossing and transit grinders and in providing switch and crossing 
grinding services is unlikely to occur and unlikely to be timely or 
sufficient to defeat a post-acquisition price increase.

III. Explanation of the Proposed Final Judgment

    The relief described in the proposed Final Judgment will eliminate 
the anticompetitive effects of this transaction by establishing a new, 
independent, and economically viable competitor in each of the affected 
markets. The proposed Final Judgment requires Harsco to divest the 
switch and crossing grinding assets of Pandrol as a viable ongoing 
business to a purchaser acceptable to the United States in its sole 
discretion. This divestiture must take place within 30 days of the 
filing of the Hold Separate Stipulation and Order in this case unless 
the United States in its sole discretion extends the time for the 
divestiture for an additional period not to exceed 30 days. If the

[[Page 66499]]

divestiture has not been accomplished within these time periods, then a 
trustee selected by the United States, in its sole discretion, shall be 
appointed to sell the Pandrol switch and crossing grinding assets to a 
purchaser who will use the assets as a viable ongoing business engaged 
in the switch and crossing grinding business. Under the proposed Final 
Judgment, the trustee has the right to require divestiture of 
additional related assets if reasonably necessary to divest the switch 
and crossing grinding assets as a viable stand-alone business.
    If a trustee is appointed, the proposed Final Judgment provides 
that the defendants will pay all costs and expenses of the trustee. 
After the trustee's appointment becomes effective, the trustee will 
file monthly reports with the parties and the Court, setting forth the 
trustee's efforts to accomplish the divestiture. At the end of six 
months, if no divestiture has been accomplished, the trustee and the 
parties will make recommendations to the Court, which shall enter such 
orders as appropriate in order to carry out the purpose of the trust, 
including extending the trust and the term of the trustee's 
appointment.
    The proposed Final Judgment specifies that the required divestiture 
shall be made to a purchaser who, as demonstrated to the sole 
satisfaction of the United States, has the capability and intent, as 
well as the managerial, operational, and financial capability to 
compete effectively in the switch and crossing grinding business and 
who is not hindered by the terms of any agreement between it and Harsco 
under which Harsco possesses the ability unreasonably to raise the 
purchaser's costs, lower its efficiency, or otherwise interfere with 
its ability to compete. Pending the required divestiture, Harsco must 
maintain and separately operate the switch and crossing grinding assets 
as an independent competitive business, with management, research, 
development, production, sales and operation of such assets held 
entirely separate, distinct and apart from those of Harsco. The 
divestiture required by the proposed Final Judgment is designed to 
ensure that the competition that would be eliminated by the proposed 
acquisition will be preserved and maintained.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent private lawsuit that may be brought against 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 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 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register. The United States will evaluate and respond to 
the comments. All comments will be given due consideration by the 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final Judgment at any time prior to entry. The comments 
and the response of the United States will be filed with the Court and 
published in the Federal Register.
    Written comments should be submitted to: J. Robert Kramer, II, 
Chief, Litigation II Section, Antitrust Division, United States 
Department of Justice, 1401 H Street, N.W., 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 proposed 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. The United States is 
satisfied that the divestiture required by the proposed Final Judgment 
will maintain viable competition in the relevant product market alleged 
in the Complaint and will effectively prevent the anticompetitive 
effects that the Complaint alleges would result from the proposed 
acquisition.

VII. Standard of Review Under the APPA for the Proposed Final Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty-day comment 
period, after which the Court shall determine whether entry of the 
proposed Final Judgment ``is in the public interest.'' In making that 
determination, the Court may consider--

    (1) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) the impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. 16(e). As the Court of Appeals for the District of Columbia 
circuit held, the APPA permits a court to consider, among other things, 
the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See United 
States v. Microsoft, 56 F.3d 1448, 1458-62 (D.C. Cir. 1995). The courts 
have recognized that the term ``public interest' take[s] meaning from 
the purposes of the regulatory legislation.'' NAACP v. Federal Power 
Comm'n, 425 U.S. 662, (1976). Since the purpose of the antitrust laws 
is to preserve ``free and unfettered competition as the rule of 
trade,'' Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4 
(1958), the focus of the ``public interest'' inquiry under the APPA, is 
whether the proposed Final Judgment would serve the public interest in 
free and unfettered competition. United States v. American Cyanamid Co. 
719 F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984); 
United States v.Waste Management Inc., 1985-2 Trade Cas. para. 66.651, 
at 63,946 (D.D.C. 1985). In conducting this inquiry, ``the 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

[[Page 66500]]

settlement through the consent decree process.'' \1\ Rather,
---------------------------------------------------------------------------

    \1\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette 
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
15 U.S.C. 16(f), those procedures are discretionary. A court need 
not invoke any of them unless it believes that the comments have 
raised significant issues and that further proceedings would aid the 
court in resolving those issues. See H.R. 93-1463, 93rd Cong. 2d. 
Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535, 
6538.

    [a]bsent a showing of corrupt failure of the government to 
discharge its duty, the Court, in making its public interest 
finding, should * * * carefully consider the explanations of the 
government in the competitive impact statement and its responses to 
comments in order to determine whether those explanations are 
---------------------------------------------------------------------------
reasonable under the circumstances.

United States v. Mid-America Diarymen, Inc., 1977-1 trade Cas. para. 
61,508, to 71,980 (W.D. Mo. 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988), quoting United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083 
(1981). See also Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent 
requires that:

    the balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is `within the reaches of the public 
interest,' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\2\

    \2\ United States v. Bechtel, 648 F.2d at 666 (citations 
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d 
at 463; United States v. National Broadcasting Co., 449 F. Supp. 
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F. 
Supp. at 716. See also United States v. American Cyanamid Co., 719 
F.2d at 565.

    A proposed consent decree is an agreement between the parties which 
is reached after exhaustive negotiations and discussions. Parties do 
not hastily and thoughtlessly stipulate to a decree because, in doing 
---------------------------------------------------------------------------
so, they

    waive their right to litigate the issues involved in the case 
and thus save themselves the time, expense, and inevitable risk of 
litigation . Naturally, the agreement reached normally embodies a 
compromise; in exchange for the saving of cost and the elimination 
of risk, the parties each give up something they might have won had 
they proceeded with the litigation.

United States v. Armour & Co. 402 U.S. 673, 681 (1971).
    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetive effect of a particular practice or whether it mandates 
certainty of free competition in the future. Court approval of a 
proposed final judgment requires a standard more flexible and less 
strict than the standard required for a finding of liability. ``[A] 
proposed decree must be approved even if it falls short of the remedy 
the court would impose on its own, as long as it falls within the range 
of acceptability or is `within the reaches of public interest.' 
(citations omitted).'' \3\
---------------------------------------------------------------------------

    \3\ United States v. American Tel. and Tel Co., 552 F. Supp. 
131, 150 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 
460 U.S. 1001 (1983), quoting United States v. Gillette Co., supra, 
406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F. 
Supp. 619, 622 (W.D. Ky. 1985)
---------------------------------------------------------------------------

VIII. Determinative Documents

    There were no determinative documents, within the meaning of the 
APPA, that were considered by the United States in formulating the 
proposed Final Judgment.

    Dated: November 8, 1999.

    For Plaintiff United States of America.
John F. Greaney,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 1401 H 
Street, N.W., Suite 3000, Washington, DC 20530, Telephone: (202) 305-
9965, Facsimile: (202) 307-5802.

Certificate of Service

    I hereby certify that I caused a copy of the foregoing Competitive 
Impact Statement to be served by first class mail, postage prepaid, 
this 8th day of November, 1999, on:
Dale Hershey, Esquire,
Eckert Seamans Cherin & Mellott, LLC, USX Tower, 600 Grant Street, 44th 
Floor, Pittsburgh, PA 15219, (412) 566-6058.
Counsel for Defendant Harsco
Wayne Dale Collins, Esquire,
Shearman & Sterling, 599 Lexington Ave., New York, NY 10022-6069, (212) 
848-4127.

Counsel for Defendants Pandrol Jackson Limited and Pandrol Jackson 
Inc.

    Dated: November 8, 1999.
John F. Greaney, Esquire.,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 1401 H 
Street, N.W.--Suite 3000, Washington, D.C. 20530, (202) 305-9965
[FR Doc. 99-30791 Filed 11-24-99; 8:45 am]
BILLING CODE 4410-11-M