[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Notices]
[Pages 18564-18570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6875]


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DEPARTMENT OF JUSTICE

Antitrust Division


Public Comment and Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the comment 
received on the proposed Final Judgment in United States v. Vulcan 
Materials Company and Florida Rock Industries, Inc., No. 1:07-CV-02044, 
which was filed in the United States District Court for the District of 
Columbia on November 13, 2007, together with the response of the United 
States to the comment.
    Copies of the comment and the response are available for inspection 
at the Department of Justice Antitrust Division, 325 Seventh Street, 
NW., Room 215, Washington, DC 20530, (telephone (202) 514-2481), and at 
the Office of the Clerk of the United States District Court for the 
District of Columbia, 333 Constitution Avenue, NW., Washington, DC 
20001. Copies of any of these materials may be obtained upon request 
and payment of a copying fee.

J. Robert Kramer II,
Director of Operations, Antitrust Division.

United States District Court For the District of Columbia

United States of America, Plaintiff, v. Vulcan Materials Company and 
Florida Rock Industries, Inc., Defendants.

    Case No.: 1:07-CV-02044.
    Judge: Sullivan, Emmet G.
    Deck Type: Antitrust.
    Date Stamp:

Plaintiff United States' Response To Public Comments

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), the 
United States hereby responds to the one public comment received 
regarding the proposed Final Judgment in this case. After careful 
consideration of the comment, the United States continues to believe 
that the proposed Final Judgment will provide an effective and 
appropriate remedy for the antitrust violations alleged in the 
Complaint. The United States will move the Court for entry of the 
proposed Final Judgment after the public comment and this Response have 
been published in the Federal Register, pursuant to 15 U.S.C. 16(d).
    On November 13, 2007, the United States filed the Complaint in this 
matter alleging that the proposed acquisition of Florida Rock 
Industries, Inc. (``Florida Rock'') by Vulcan Materials Company 
(``Vulcan'') would violate Section 7 of the Clayton Act, 15 U.S.C. 18. 
Simultaneously with the filing of the Complaint, the United States 
filed a proposed Final Judgment and a Hold Separate Stipulation and 
Order (``HSSO'') signed by plaintiff and the defendants, consenting to 
the entry of the proposed Final Judgment after compliance with the 
requirements of the Tunney Act, 15 U.S.C. 16. Pursuant to those 
requirements, the United States filed its Competitive Impact Statement 
(``CIS'') in this Court, also on November 13, 2007; published the 
proposed Final Judgment and CIS in the Federal Register on December 4, 
2007, see United States v. Vulcan Materials Company and Florida Rock 
Industries, Inc., 72 FR 68189; and published summaries of the terms of 
the proposed Final Judgment and CIS, together with directions for the 
submission of written comments relating to the proposed Final Judgment, 
in The Washington Post for seven days beginning on December 16, 2007 
and ending on December 22, 2007. The 60-day period for public comments 
ended on February 20, 2008, and one comment was received as described 
below and attached hereto.

I. The Investigation and Proposed Resolution

    On February 19, 2007, Vulcan and Florida Rock entered into an 
agreement for Vulcan to acquire Florida Rock in a cash-and-stock 
transaction. For the next nine months, the United States Department of 
Justice (``Department'') conducted an extensive, detailed investigation 
into the competitive effects of the Vulcan/Florida Rock transaction. As 
part of this investigation, the Department obtained substantial 
documents and information from the merging parties and issued six Civil 
Investigative Demands to third parties. The Department received and 
considered more than 130 boxes of hard copy material and over 280,000 
electronic files. More than 130 interviews were conducted with 
customers, competitors, and other individuals with knowledge of the 
industry. The investigative staff carefully analyzed the information 
provided and thoroughly considered all of the issues presented. The 
Department

[[Page 18565]]

considered the potential competitive effects of the transaction on 
coarse aggregate sold in a number of different geographic areas, 
obtaining information about this product and these areas from 
customers, competitors, and other knowledgeable parties. The Department 
concluded that the combination of Vulcan and Florida Rock likely would 
lessen competition in the production, distribution and sale of coarse 
aggregate in eight different geographic markets.
    Coarse aggregate is crushed stone produced at quarries and used for 
such things as road base and the production of ready mix concrete and 
asphalt. There are no reliable substitutes for coarse aggregate, and to 
the extent that any substitutes exist they are already being used by 
customers to the fullest extent possible, and their use cannot be 
increased in response to an increase in the price of coarse aggregate. 
A small but significant increase in price would not likely cause coarse 
aggregate consumers to switch products or otherwise reduce their usage 
of coarse aggregate so as to make the price increase unprofitable.
    The eight separate geographic markets in which Vulcan's acquisition 
of Florida Rock would lessen competition substantially are: Northwest 
Atlanta, West Atlanta, Southwest Atlanta, South Atlanta, Southeast 
Atlanta, Georgia; Columbus, Georgia; Chattanooga, Tennessee; and South 
Hampton Roads, Virginia. In each market, certain Vulcan and Florida 
Rock quarries competed with each other, and usually also with one or 
two other companies, to serve customers in that market, and customers 
with plants or jobs within that market were not able to turn to other 
suppliers because their quarries were too far away and their hauling 
costs were too great.
    As explained more fully in the Complaint and CIS, the acquisition 
of Florida Rock by Vulcan would have substantially increased 
concentration and lessened competition in the production, distribution 
and sale of coarse aggregate in each of the eight affected geographic 
markets. In the affected markets, the acquisition would have reduced 
the number of suppliers from four to three, from three to two, or from 
two to one; would have eliminated competition between Vulcan and 
Florida Rock; and would have increased the likelihood that Vulcan would 
unilaterally increase the price of coarse aggregate to a significant 
number of customers. In certain markets, the acquisition also would 
have facilitated coordination among the remaining coarse aggregate 
suppliers. In every affected market, it was likely that the acquisition 
would lead to higher prices. Therefore, the Department filed its 
Complaint alleging competitive harm in the coarse aggregate product 
market in each of the eight affected geographic markets, and sought a 
remedy that would ensure that such harm is prevented. For each of the 
eight affected geographic markets, the proposed Final Judgment requires 
the divestiture of a quarry serving that market, and in the case of 
South Hampton Roads also requires the divestiture of one distribution 
yard.
    The proposed Final Judgment in this case is designed to preserve 
competition in the production, distribution, and sale of coarse 
aggregate in each of the eight affected geographic markets. The 
proposed Final Judgment requires the divestiture of sufficient assets 
to prevent the increase in concentration that resulted from the 
combination of Vulcan and Florida Rock in each affected market.

II. Summary of Public Comment and Response

    During the 60-day public comment period, the United States received 
only one comment, from the North Lamar County Citizens Association 
(``NLCCA''), relating primarily to a quarry located in that county.\1\ 
No comment was received from any coarse aggregate customer located in 
any of the eight geographic markets, or anywhere else, or from any 
competitor selling coarse aggregate to such customers. Upon review, the 
United States believes that nothing in the comment warrants a change in 
the proposed Final Judgment or is sufficient to suggest that the 
proposed Final Judgment is not in the public interest. The comment 
asserts that the relief obtained by the United States in the Southeast 
Atlanta market is inadequate because it did not require the divestiture 
of Florida Rock's Lamar County quarry along with the divestiture of 
Vulcan's Butts County quarry. The United States addresses this concern 
below and explains how the remedy is appropriate.\2\
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    \1\ The NLCCA Comment came in two parts, the primary comment by 
letter dated January 12, 2008, and a supplement by letter dated 
January 14, 2008.
    \2\ The comment also asserts that the quarry identified in the 
complaint as belonging to one of the defendants' competitors in the 
South Atlanta market, and located in College Park, Georgia, does not 
appear in the Mining Directory of Georgia put out by the Georgia 
Department of Natural Resources, and that the Association is 
``unaware of any such quarry.'' The United States does not know why 
the College Park quarry does not appear in the list of quarries 
shown on the document attached by the Association. However, it does 
appear on the Georgia Department of Transportation's Web site, at 
http://wwwdot.state.ga.us/dotJconstructionImaterials-researchfDocuments/Pdf/qpl/qpl02.pdf.
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A. Summary of the Comment Submitted by the NLCCA

    As the President of the organization, Jonathan P. Sexton, states in 
the NLCCA's comment, Department attorneys spoke with Mr. Sexton during 
the course of the investigation, and the United States was therefore 
aware of the Association's concerns about the Lamar quarry.
    In its comment, the NLCCA notes that the proposed Final Judgment 
does not mention the Lamar quarry, which according to the organization 
received the necessary permits for its operation only on November 9, 
2007, four days before the filing of the Complaint and proposed Final 
Judgment. The NLCCA asserts that Vulcan ``plans to serve southeast 
Atlanta with not only the Butts County Quarry but the huge 588.50 
[acre] Lamar County Quarry,'' and that allowing Vulcan to continue to 
operate the Lamar County Quarry ``effectively nullifies the effect on 
competition of the divesting of the Butts County Quarry.'' The comment 
states that ``the Lamar County Quarry is centered between the Butts 
County Quarry and the Griffin Quarry,'' and that there is ``no major 
competition in this area of South and Southeastern Atlanta.'' The NLCCA 
concludes by arguing that the proposed Final Judgment (the ``Consent 
Agreement'') is ``flawed and in error'' because of its ``failure to 
address competition in light of the Lamar County Quarry,'' and that the 
defendants ``should be required to divest of both the Butts County 
Quarry and the Lamar County Quarry.''

B. Response of United States to the NLCCA's Comment

    The United States has carefully considered the NLCCA's comment, but 
disagrees that failure to require the divestiture of the Lamar quarry 
will have any adverse effect on competition. As noted in the comment, 
the three quarries nearest to one another in the area around Lamar 
County are: (1) The Griffin Quarry, which had been owned by Florida 
Rock; (2) the Lamar County quarry project, to the southeast of the 
Griffin quarry, which was being developed by Florida Rock; and (3) the 
Butts County quarry project, still further to the east, which was being 
developed by Vulcan. The key fact is that the Griffin quarry and the 
Lamar County project were both owned by Florida Rock, and there would 
have been no competition between these two quarries whether or not 
Florida Rock had been acquired by Vulcan. The Butts County project, on 
the other hand, was being developed by Vulcan, and this quarry

[[Page 18566]]

thus would have provided independent competition to the Florida Rock 
quarries in the area but for the acquisition. It is this competition--
the competition provided by the Butts County quarry--that would have 
been removed by Vulcan's acquisition of Florida Rock. And it is this 
competition that the Final Judgment preserves by requiring that the 
Butts quarry project be divested. Requiring divestiture of the Lamar 
County quarry as well as the Butts quarry would go well beyond what is 
needed to restore competition in the Southeast Atlanta market, which is 
why the United States did not seek to have this divestiture included in 
the Final Judgment.

III. Conclusion

    The issues raised in the public comment were among the many 
considered during the extensive and thorough investigation. The United 
States has determined that the proposed Final Judgment provides an 
effective and appropriate remedy for the antitrust violations alleged 
in the Complaint, and is therefore in the public interest. The United 
States will move this Court to enter the proposed Final Judgment after 
the comment and response are published. Respectfully submitted,
    Dated: March 18, 2008.

Robert W. Wilder,
Attorney.

U.S. Department of Justice,
Antitrust Division,
Litigation II Section,
1401 H Street, NW., Suite 3000,
Washington, DC 20530,
Telephone: (202) 307-0924.

Certificate of Service

    I, Robert W. Wilder, hereby certify that on the 18th day of March, 
2008, I caused a copy of the foregoing Plaintiff United States' 
Response to Public Comments with attachments to be mailed, by U.S. 
mail, postage prepaid, to the attorneys listed below:
    Counsel for Defendant Vulcan Materials Company: Joseph D. Larson, 
Esquire, Wachtell, Lipton, Rosen & Katz LLP, 51 West 52nd Street, New 
York, New York 10019, (212) 403-1000, [email protected].
    Counsel for Defendant Florida Rock Industries, Inc.: Laura A. 
Wilkinson, Esquire, Weil, Gotshal & Manges LLP, 1300 I Street, NW., 
Suite 900, Washington, DC 20005, (202) 682-7005, 
[email protected].
    North Lamar County Citizens Association: Jonathan P. Sexton, 
President, P.O. Box 516, Milner, Georgia 30257, (770) 474-9335, 
[email protected].

North Lamar County Citizens Association P.O. Box 516, Milner, Georgia 
30257. ``Quality Growth, Quality Life''

    January 12, 2008.
    Via Certified Mail Return Receipt Na 1555474410048138605.
    Maribeth Petrizzi, Chief, Litigation H Section, Antitrust Division, 
U.S. Department of Justice, 1401 H Street, NW., Suite 3000, Washington, 
DC 20530.
    Re: USA DOJ v. Vulcan Materials Company and Florida Rock 
Industries, Inc., Case: I:07-cv-02044.
Dear Ms. Petrizzi,
    My name is Jonathan Sexton. I am President of the North Lamar 
County Citizens Association. Please consider this to be our comment 
pursuant to the Tunney Act regarding the proposed consent decree and 
the merger of Vulcan Materials Company (Vulcari) and Florida Rock 
Industries, Inc. (FRI). I read the complaint and the impact with some 
interest. Let me bring to your attention a major issue that was left 
out of the impact statement with respect to the anti-competitive effect 
of this merger on the South Atlanta and Southeast Atlanta markets.
    In examining the proposed consent agreement with respect to the 
South Atlanta and Southeast Atlanta markets, there has been a glaring 
omission. In paragraph 2(B)(2)(d) and (e) there is no mention of the 
FRI quarry in development in Lamar County. This quarry is only 9.89 
miles from the Vulcan Butts County quarry that is mentioned and is 
being divested. The Lamar County Quarry is 23 miles from the FRI 
Griffin Quarry and 29 miles from the Vulcan Stockbridge Quarry. We know 
that the DOJ is aware of this quarry as I have personally had 
conversations with Helena Jolly (Gardner) regarding this specific 
quarry. The quarry received Georgia EPD surface, air, and water permits 
on November 9, 2007. (A copy of the permits are attached as Exhibit A). 
This quarry encompasses 588.50 acres in Lamar County and has been 
described by FRI in public hearings as ``one of the best deposits of 
granite in the State of Georgia outside of Stone Mountain.''
    As discussed in the impact statement, the issue is competition and 
competitive pricing in the aggregate industry is typically determined 
by plant and service locations. Vulcan plans to serve southeast Atlanta 
with not only the Butts County Quarry but the huge 588.50 Lamar County 
Quarry. Allowing Vulcan and FRI to operate the Lamar County Quarry 
effectively nullifies the effect on competition of the divesting of the 
Butts County Quarry. Vulcan will have effectively ringed in and roped 
off the southeast Atlanta area from competition if it is allowed to 
operate this large Lamar County Quarry. Attached as Exhibit 2 is a map 
of quarries in the area. Flag A is the Butts County Quarry. Flag B is 
the Lamar County Quarry. Flag R is the Griffin Quarry. All of the blue 
flags expect for A are competitors. All of the orange flags are Vulcan 
and FRI quarries. As you can see, the Lamar County Quarry is centered 
between the Butts County Quarry and the Griffin Quarry. There is no 
major competition in this area of South and Southeast Atlanta.
    Page 2, January 12, 2008.
    There is also an error in paragraph 24 of the complaint and impact 
statement. Paragraph 24 of the complaint and paragraph 2(B)(2)(d) of 
the Impact Statement refer to an unnamed competitors quarry located in 
College Park, Georgia that acts as a competitor to Defendants. 
According to the Mining Directory of Georgia, 21st Edition, Georgia 
Department of Natural Resources, Environmental Protection Division, 
there is no such competitor's quarry in College Park, Georgia. We are 
unaware of any such quarry.
    Clearly, failure to address competition in light of the Lamar 
County Quarry makes the Consent Agreement flawed and in error with 
respect to decreasing competition and increasing prices in South and 
Southeast Atlanta. Defendants should be required to divest of both the 
Butts County Quarry and the Lamar County Quarry.
Sincerely,

Jonathan P. Sexton
President, North Lamar County Citizens Association

Cc: Honorable Emmet G. Sullivan,
Judge, United States District Court for the District of Columbia
BILLING CODE 4410-11-P

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    Maps appearing here in the comment are illegible upon reprinting. 
The maps are available at the Department of Justice Antitrust Division, 
325 Seventh Street, NW., Room 215, Washington, DC 20530, (202) 514-
2481, and at the Office of the Clerk of the United States District 
Court for the District of Columbia, 333 Constitution Avenue, NW., 
Washington, DC 20001.

North Lamar County Citizens Association

    P.O. Box 516, Milner, Georgia 30257.
    ``Quality Growth, Quality Life''
    January 14, 2008.
    Maribeth Petrizzi, Chief, Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street NW., Suite 3000, 
Washington, DC 20530.
    Supplement To Comment
    Re: USA DOJ v. Vulcan Materials Company and Florida Rock 
Industries, Inc., Case: I:07-cv-02044.
Dear Ms. Petrizzi,
    After sending our comment I realized there was no contact 
information included. Accordingly, below is my contact information. 
Also attached are photos showing that FRI has already begun working at 
the Lamar County Quarry.
    If you have any questions, please feel free to call me.
    Sincerely,
Jonathan P. Sexton
President, North Lamar County Citizens Association
    Contact: Jonathan P. Sexton.
    Phone: 770-474-9335.
    Fax: 770-474-7113.
    E-mail: [email protected].
    Photographs appearing here in the comment are illegible upon 
reprinting. The photographs are available at the Department of Justice 
Antitrust Division, 325 Seventh Street, NW., Room 215, Washington, DC 
20530, (202) 514-2481, and at the Office of the Clerk of the United 
States District Court for the District of Columbia, 333 Constitution 
Avenue, NW., Washington, DC 20001.
[FR Doc. E8-6875 Filed 4-3-08; 8:45 am]
BILLING CODE 4410-11-C