[Federal Register Volume 68, Number 205 (Thursday, October 23, 2003)]
[Notices]
[Pages 60691-60694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26750]


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FEDERAL TRADE COMMISSION

[File No. 031 0152]


GenCorp Inc.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before November 13, 2003.

ADDRESSES: Comments filed in paper form should be directed to: FTC/
Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW.,

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Washington, DC 20580. Comments filed in electronic form should be 
directed to: [email protected], as prescribed in the 
Supplementary Information section.

FOR FURTHER INFORMATION CONTACT: Jonathan Klarfeld, FTC, Bureau of 
Competition, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 
326-3187.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Section 2.34 
of the Commission's Rules of Practice, 16 CFR 2.34, notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of thirty (30) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for October 15, 2003), on the World Wide Web, at ``http://www.ftc.gov/os/2003/10/index.htm.'' A paper copy can be obtained from the FTC 
Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. Comments filed in paper form should 
be directed to: FTC/Office of the Secretary, Room 159-H, 600 
Pennsylvania Avenue, NW., Washington, DC 20580. If a comment contains 
nonpublic information, it must be filed in paper form, and the first 
page of the document must be clearly labeled ``confidential.'' Comments 
that do not contain any nonpublic information may instead be filed in 
electronic form (in ASCII format, WordPerfect, or Microsoft Word) as 
part of or as an attachment to email messages directed to the following 
email box: [email protected]. Such comments will be considered 
by the Commission and will be available for inspection and copying at 
its principal office in accordance with section 4.9(b)(6)(ii) of the 
Commission's Rules of Practice, 16 CFR 4.9(b)(6)(ii)).

Analysis of Agreement Containing Consent Orders To Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an Agreement Containing Consent Orders (``Consent 
Agreement'') from GenCorp Inc. (``GenCorp''), which is designed to 
remedy the anticompetitive effects resulting from GenCorp's acquisition 
of the propulsion business of Atlantic Research Corporation (``ARC''), 
a subsidiary of Sequa Corporation (``the Acquisition''). The Consent 
Agreement includes a proposed Decision and Order (``Order'') that would 
require GenCorp to divest ARC's in-space liquid propulsion business 
within six (6) months after the date the Acquisition is consummated. 
The Consent Agreement also includes an Order to Hold Separate and 
Maintain Assets that requires GenCorp to preserve the ARC in-space 
liquid propulsion business as a viable, competitive, and ongoing 
operation until the divestiture is achieved.
    The proposed Consent Agreement has been placed on the public record 
for thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
proposed Consent Agreement and the comments received and will decide 
whether it should withdraw from the Consent Agreement or make final the 
Consent Agreement's proposed Order.
    On May 2, 2003, Aerojet-General Corporation (``Aerojet''), a 
subsidiary of GenCorp, entered into an asset purchase agreement with 
ARC (which was subsequently amended on August 29, 2003) to acquire 
substantially all of the assets of ARC, as well as the shares of ARC UK 
Limited, for $133 million in cash. The Commission's Complaint alleges 
that the Acquisition, if consummated, would violate Section 7 of the 
Clayton Act, as amended, 15 U.S.C. 18, and section 5 of the Federal 
Trade Commission Act, as amended, 15 U.S.C. 45, by lessening 
competition in the U.S. markets for the research, development, 
manufacture and sale of monopropellant thrusters, bipropellant apogee 
thrusters, dual mode apogee thrusters, and bipropellant attitude 
control thrusters--four different types of in-space propulsion 
thrusters.

II. The Parties

    GenCorp is a technology-based manufacturing company headquartered 
in Rancho Cordova, California. Its businesses are concentrated in three 
areas: aerospace and defense, fine chemicals and automotive. Through 
its Aerojet subsidiary, GenCorp researches, develops, manufactures and 
sells propulsion products and systems for space and defense 
applications, as well as armament systems for precision tactical weapon 
systems. Aerojet produces a full range of in-space propulsion thrusters 
at its facility located in Redmond, Washington.
    Sequa Corporation (``Sequa'') is a diversified industrial company 
that produces a broad range of products through operating units in five 
business segments: aerospace, propulsion, metal coating, specialty 
chemicals and other products. The propulsion segment of Sequa's 
business consists of the ARC business. ARC, headquartered in 
Gainesville, Virginia, is a leading supplier of liquid and solid fuel 
propulsion products and systems for military, commercial and civil 
applications. ARC produces a full range of in-space propulsion 
thrusters at its liquid propulsion facilities in Niagara, New York, and 
Westcott in the United Kingdom.

III. The In-Space Propulsion Markets

    In-space propulsion thrusters (which are, essentially, engines) are 
used to maneuver spacecraft, such as satellites and interplanetary 
vehicles, through space after a launch vehicle delivers them to the 
upper atmosphere. In-space propulsion thrusters are essential 
components of in-space propulsion systems, which include valves, fuel 
tanks, fuel lines and other parts necessary to generate the thrust 
needed to move spacecraft in space.
    In-space propulsion thrusters are used primarily to either place 
spacecraft into their intended orbits, or maintain their proper 
position while in orbit. The process of transferring a spacecraft to 
its intended orbit after it has been dropped off by a launch vehicle is 
referred to as ``apogee insertion,'' and the space propulsion thrusters 
that perform apogee insertion are known as ``apogee thrusters.'' Apogee 
thrusters typically generate between 90 pounds and 140 pounds of force.
    Attitude control thrusters are used to provide gentle pushes that 
allow spacecraft to control their angular position while in orbit so 
that sensors, transponders or other hardware on the spacecraft are 
properly oriented with respect to the Earth (or other target) to 
perform their functions. Attitude control thrusters can also perform a 
function called ``station-keeping,'' which refers to a spacecraft's 
ability to maintain its position in an assigned orbital slot, in its 
proper orientation. Because attitude control and station-keeping 
functions require only small, short bursts of thrust to perform, 
attitude control thrusters typically produce five pounds of thrust or 
less.
    There are two primary types of in-space propulsion thrusters: 
monopropellant thrusters and

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bipropellant thrusters. The primary difference between these two types 
of thrusters is that monopropellant thrusters utilize a single liquid 
fuel source (typically hydrazine), whereas bipropellant thrusters 
operate using a combination of both a liquid fuel (typically 
monomethylhydrazine) and an oxidizer. Monopropellant thrusters are 
well-suited for pulsed operations of short duration, making them ideal 
for attitude control and station-keeping. As such, monopropellant 
thrusters typically produce less than a pound to about 5 pounds of 
thrust (although for particular applications, some monopropellant 
thrusters are designed to produce as much as 140 pounds of thrust).
    A bipropellant in-space propulsion system typically consists of 
separate attitude control and apogee thrusters. As with other apogee 
thrusters, bipropellant apogee thrusters generally produce thrust that 
ranges between 90 to 140 pounds of force. Bipropellant attitude control 
thrusters provide thrusts comparable to monopropellant thrusters, which 
are usually 5 pounds of force or less. Bipropellant in-space propulsion 
systems are more fuel efficient, as well as more expensive, than 
monopropellant propulsion systems.
    Dual mode apogee thrusters are specialized bipropellant apogee 
thrusters that operate using hydrazine, the same fuel used by 
monopropellant thrusters, in combination with an oxidizer. A dual mode 
propulsion system affords spacecraft manufacturers the option of using 
monopropellant thrusters and a bipropellant apogee thruster on a single 
spacecraft without having to use two separate fuel systems. As a 
result, a spacecraft can attain the benefit of using highly reliable 
and accurate monopropellant thrusters for attitude control while at the 
same time utilizing bipropellant apogee thrusters. Dual mode apogee 
thrusters are more fuel efficient, as well as more expensive, than 
traditional bipropellant apogee thrusters.
    The determination by customers of the appropriate type of 
propulsion thruster to put on a satellite or spacecraft is based on the 
satellite's or spacecraft's mission and encompasses a variety of 
factors. Those factors can include the nature of the mission, the 
length of the mission, the orbit(s) in which the spacecraft will 
operate, the mass and volume of the spacecraft itself, the launch 
vehicle it will be placed on, other equipment that will be on the 
spacecraft, and the price of the thrusters. An engineering decision is 
made, based on all of these factors, as to which type of propulsion 
thruster(s) is best suited for a particular satellite or spacecraft. 
Although the price of an in-space propulsion thruster is a factor that 
customers take into consideration when selecting an in-space propulsion 
thruster, it is rarely the most important factor. For these reasons, 
customers for one type of in-space propulsion thruster--monopropellant, 
bipropellant apogee, dual mode apogee, or bipropellant attitude 
control--would not be likely to switch to any of the other types of 
thrusters for use on a particular satellite or spacecraft, if the price 
of the first type of thruster were to increase by five to ten percent.
    The relevant geographic market for each in-space propulsion market 
is the United States. Although there are a handful of foreign suppliers 
of in-space propulsion thrusters, they are not effective competitors in 
the U.S. in-space propulsion markets. The principal reason for this is 
that U.S. export regulations, in particular the International Traffic 
in Arms Regulations, make it very burdensome and time consuming for 
U.S. commercial, civil and defense customers to procure foreign 
thrusters, making foreign suppliers an unattractive option. In 
addition, on many U.S. Department of Defense as well as other U.S. 
governmental spacecraft programs, foreign-supplied thrusters are not an 
option at all due to national security issues. Accordingly, for the 
vast majority of in-space propulsion applications, only U.S. 
manufacturers are effective competitors.
    The U.S. markets for the research, development, manufacture and 
sale of monopropellant, bipropellant apogee, and dual mode apogee 
thrusters are all highly concentrated. Aerojet and ARC are the only 
viable suppliers of these thrusters to commercial, civil and defense 
customers in the United States for most programs. Even for customers 
where other suppliers (such as foreign manufacturers) are potential 
options, Aerojet and ARC are each other's closest competitors and the 
other suppliers are substantially less attractive options. Prior to the 
acquisition, Aerojet and ARC frequently competed against each other for 
U.S. monopropellant, bipropellant apogee, and dual mode apogee thruster 
business, and this competition benefitted customers of these products. 
By eliminating competition between the only two viable competitors for 
most customers and by far the two best options for other customers in 
these highly concentrated markets, the proposed acquisition would 
create a virtual monopoly in each of these markets. As a result, the 
combined firm would be able to exercise market power unilaterally. It 
is thus likely that as a result of the acquisition purchasers of 
monopropellant, bipropellant apogee and dual mode apogee thrusters 
would be forced to pay higher prices and that innovation, service 
levels, and product quality in these markets would decrease.
    The U.S. market for the research, development, manufacture and sale 
of bipropellant attitude control thrusters is also highly concentrated. 
In fact, ARC is the only firm with recent sales of bipropellant 
attitude control thrusters to U.S. customers. For many customers, 
including the vast majority of U.S. governmental customers, ARC 
essentially has a monopoly position in the bipropellant attitude 
control thruster market. Although Aerojet does not currently produce 
bipropellant attitude control thrusters, it has substantial existing 
expertise and technology in this area, has produced these thrusters in 
the recent past, and is a likely potential entrant into the market. 
Aerojet's acquisition of the ARC in-space liquid propulsion business 
eliminates the most likely potential competitor in this market and for 
many customers, including the vast majority of U.S. governmental 
customers, leaves the market with a single supplier for the foreseeable 
future.
    There are significant impediments to new entry into each in-space 
propulsion market. A new entrant into any one of these markets would 
need to undertake the difficult, expensive and time-consuming process 
of researching and developing a viable in-space propulsion thruster, 
acquiring the necessary production and testing assets, obtaining the 
appropriate environmental permits, and developing the expertise needed 
to successfully design, manufacture, and market these products. 
Finally, a new entrant would need to establish what is commonly 
referred to as ``heritage'' for each new thruster, which is a 
successful track record of use in space. It would take a new entrant 
over two years to accomplish these steps and achieve a significant 
market impact. Additionally, new entry into the in-space propulsion 
market is unlikely to occur because the sunk costs and economies of 
scale necessary to enter the market and effectively produce in-space 
propulsion thrusters are extremely high relative to the limited sales 
opportunities available to new entrants.

IV. The Consent Agreement

    The Consent Agreement effectively remedies the acquisition's 
anticompetitive effects by requiring GenCorp to divest ARC's in-space 
liquid

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propulsion business. This business consists of, among other things, 
ARC's Niagara and Westcott production facilities, specialized 
manufacturing and testing equipment, technical drawings, advertising 
and training materials, customer lists, intellectual property and other 
assets at the Niagara and Westcott facilities used in the research, 
development, manufacturing, testing, marketing, customer support and 
sale of monopropellant, bipropellant apogee, dual mode apogee, and 
bipropellant attitude control thrusters (collectively ``ARC In-Space 
Liquid Propulsion Assets''). Pursuant to the Consent Agreement, GenCorp 
is required to divest the ARC In-Space Liquid Propulsion Assets to a 
buyer, at no minimum price, within six (6) months from the date of the 
Acquisition. The acquirer of the ARC In-Space Liquid Propulsion Assets 
must receive the prior approval of the Commission.
    If GenCorp has not divested the ARC In-Space Liquid Propulsion 
Assets within the time and in the manner required by the Consent 
Agreement, the Commission may appoint a trustee to divest these assets, 
subject to Commission approval. The trustee will have the exclusive 
power and authority to accomplish the divestiture within six (6) 
months, subject to any necessary extensions by the Commission. The 
Consent Agreement requires GenCorp to provide the trustee with access 
to information related to the ARC in-space liquid propulsion business 
as necessary to fulfill his or her obligations.
    The proposed Order to Hold Separate and Maintain Assets that is 
also included in the Consent Agreement requires that GenCorp hold 
separate and maintain the viability of the ARC In-Space Liquid 
Propulsion Assets as a viable and competitive operation until the 
business is transferred to the Commission-approved acquirer. 
Furthermore, it contains measures designed to ensure that no material 
confidential information is exchanged between GenCorp and the ARC in-
space liquid propulsion business (except as otherwise provided in the 
Order or in the Order to Hold Separate and Maintain Assets) and 
provisions designed to prevent interim harm to competition in each in-
space propulsion market pending divestiture. The Order to Hold Separate 
and Maintain Assets provides for the Commission to appoint a Hold 
Separate Trustee who is charged with the duty of monitoring GenCorp's 
compliance with the Order to Hold Separate and Maintain Assets. 
Pursuant to that Order, the Commission has appointed Charles L. Wilkins 
of KPMG LLP as Hold Separate Trustee to oversee the In-Space Liquid 
Propulsion Assets prior to their divestiture and to ensure that GenCorp 
complies with its obligations under the Consent Agreement regarding the 
In-Space Liquid Propulsion Assets. Mr. Wilkins has more than 35 years 
of experience both inside the aerospace and defense industry and as a 
professional advisor. He has held several key management positions in 
the aerospace and defense industry, including senior corporate auditor, 
controller and chief financial officer, and during his professional 
consulting career has assisted most of the larger defense contractors 
in the United States in a wide array of services including litigation 
and dispute resolution, compliance matters and profit maximization.
    The proposed Order requires GenCorp to provide the Commission, 
within thirty (30) days from the date the Order becomes final, a 
verified written report setting forth in detail the manner and form in 
which GenCorp intends to comply, is complying, and has complied with 
the provisions relating to the proposed Order and the Order to Hold 
Separate and Maintain Assets. The proposed Order further requires 
GenCorp to provide the Commission with a report of compliance with the 
Order every thirty (30) days after the date of that initial compliance 
report until the divestiture has been completed.
    The purpose of this analysis is to facilitate public comment on the 
Consent Agreement, and it is not intended to constitute an official 
interpretation of the Consent Agreement, the proposed Decision and 
Order, or the Order to Hold Separate and Maintain Assets, or to modify 
their terms in any way.

    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. 03-26750 Filed 10-22-03; 8:45 am]
BILLING CODE 6750-01-P