Tuesday, June 10, 2008 Part III Department of Justice Antitrust Division United States v. Abitibi-Consolidated Inc. et al.; Response to Public Comment on the Proposed Final Judgment; Notice VerDate Aug<31>2005 17:35 Jun 09, 2008 Jkt 214001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\10JNN2.SGM 10JNN2 rwilkins on PROD1PC63 with NOTICES2 32834 Federal Register / Vol. 73, No. 112 / Tuesday, June 10, 2008 / Notices DEPARTMENT OF JUSTICE Judgment after the Comment and this the course of the Department’s Response have been published in the investigation into the proposed merger, Antitrust Division Federal Register, pursuant to 15 U.S.C. the NAA shared with the investigative 16(d). staff its concerns about the impact of the United States v. Abitibi-Consolidated The United States filed a civil proposed merger on competition; the Inc. et al.; Response to Public antitrust Complaint under Section 15 of investigative staff carefully analyzed its Comment on the Proposed Final the Clayton Act, 15 U.S.C. 25, on concerns and submissions, as well as Judgment October 23, 2007, alleging that the the data, market facts and opinions of Pursuant to the Antitrust Procedures merger of Abitibi-Consolidated other knowledgeable parties. and Penalties Act, 15 U.S.C. 16(b)–(h), Incorporated (‘‘Abitibi’’) and Bowater The Department concluded that the the United States hereby publishes the Incorporated (‘‘Bowater’’) would violate combination of Abitibi and Bowater public comment received on the Section 7 of the Clayton Act, 15 U.S.C. likely would lessen competition in the proposed Final Judgment in United 18. Simultaneously with the filing of the North American newsprint market. States of America v. Abitibi- Complaint, the United States filed a Newspapers are printed on newsprint, Consolidated Inc. et al., Civil Action No. proposed Final Judgment and an Asset the lowest quality and generally the 1:07–cv–1912 and the response to the Preservation Stipulation and Order least expensive grade of groundwood paper. Newspaper publishers, who buy comment. On October 23, 2007, the (‘‘Stipulation’’) signed by plaintiff and defendants consenting to the entry of more than 80 percent of all newsprint United States filed a Complaint alleging the proposed Final Judgment after sold in the United States, have no close that the merger between Abitibi- compliance with the requirements of the substitutes to use for printing Consolidated Inc. (‘‘Abitibi’’) and Tunney Act. Pursuant to those newspapers because of newsprint’s Bowater Inc. (‘‘Bowater’’) violated requirements, the United States filed a price and physical characteristics. Section 7 of the Clayton Act, 15 U.S.C. Competitive Impact Statement (‘‘CIS’’) Because publishers’ newsprint presses 18. The proposed Final Judgment, filed in this Court on October 23, 2007, are optimized to use newsprint, on October 23, 2007, requires the published the proposed Final Judgment switching to another grade of paper combined company to divest Abitibi’s and CIS in the Federal Register on would be costly. A small but significant Snowflake, Arizona paper mill. Public November 8, 2007, see United States v. increase in price likely would not cause comment was invited within the Abitibi-Consolidated Inc. and Bowater customers to switch sufficient statutory 60-day comment period. Inc., 72 FR 63187 (November 8, 2007); newsprint tonnes to other products or Copies of the Complaint, proposed Final and published summaries of the terms otherwise curtail their newsprint usage Judgment, Competitive Impact of the proposed Final Judgment and CIS, so as to render the increase unprofitable. Statement, Public Comment and the together with directions for the As explained more fully in the United States’ Response to the Comment submission of written comments Complaint and CIS, the merger of and other papers are currently available relating to the proposed Final Judgment, Abitibi and Bowater would substantially for inspection in Suite 1010 of the in The Washington Post for seven days increase concentration and lessen Antitrust Division, Department of beginning on November 18, 2007, and competition in the production, Justice, 450 5th Street, NW., ending on November 24, 2007. The 60- distribution and sale of newsprint in Washington, DC 20530, telephone: (202) day period for public comments ended North America. After conducting a 514–2481 and the Office of the Clerk of on January 7, 2008, and one comment detailed analysis of the merger, the the United States District Court for the was received as described below and Department filed its Complaint alleging District of the District of Columbia, 333 attached hereto. competitive harm in the newsprint Constitution Ave., NW, Washington, DC market in North America and sought a 20001. Copies of any of these materials I. Background: The United States’ remedy that would ensure that such may be obtained upon request and Investigation and the Proposed harm is prevented. payment of a copying fee. Resolution The proposed Final Judgment in this J. Robert Kramer II, On January 29, 2007, Abitibi and case is designed to preserve competition Bowater announced plans to merge into in the production, distribution and sale Director of Operations, Antitrust Division. a new company to be called of newsprint in North America. It In the matter of: United States of AbitibiBowater Incorporated requires the divestiture of a newsprint America, Plaintiff, v. Abitibi- (‘‘AbitibiBowater’’). Over the next nine mill that manufactures newsprint for Consolidated Inc. and Bowater Inc., months, the United States Department sale in North America. Specifically, the Defendants. of Justice (the ‘‘Department’’) conducted proposed Final Judgment directs a sale Case No: [1:07–cv–01912] an extensive, detailed investigation into of Abitibi’s Snowflake, Arizona, Judge: Collyer, Rosemary M.; Deck the competitive effects of the proposed newsprint mill (‘‘Snowflake,’’ or the type: Antitrust. transaction. As part of this investigation, ‘‘Snowflake mill’’) to a purchaser the Department obtained substantial acceptable to the United States. Response of Plaintiff United States to documents and information from the In the Department’s judgment, Public Comments on the Proposed Final merging parties and issued 37 Civil divestiture of the Snowflake mill to a Judgment Investigative Demands to third parties. qualified purchaser would remedy the Pursuant to the requirements of the In response, the Department received violation alleged in the Complaint Antitrust Procedures and Penalties Act and considered more than 150,000 because the Snowflake mill, located in (‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C. pages of material. The Department northeastern Arizona, is one of the most 16(b)–(h), the United States hereby files conducted more than 60 interviews with efficient and profitable newsprint mills the Comment received from members of customers, competitors and other in North America. Plans to improve the the public concerning the proposed individuals with knowledge of the mill’s efficiency in coming years with Final Judgment in this case and the industry. The sole commenter here, the investments in energy and machinery Response by the United States to the Newspaper Association of America (the are already underway. Snowflake’s size Comment. The United States will move ‘‘NAA’’), represents newspaper and cost position ensure that its the Court for entry of the proposed Final publishers in the United States. During divestiture to a competitor of the VerDate Aug<31>2005 17:35 Jun 09, 2008 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\10JNN2.SGM 10JNN2 rwilkins on PROD1PC63 with NOTICES2 Federal Register / Vol. 73, No. 112 / Tuesday, June 10, 2008 / Notices 32835 merged firm will preserve competition precedent and the nature of Tunney Act reflect underlying weakness in the in the North American newsprint proceedings’’).2 government’s case or concessions made market. Although entry of the proposed As the United States Court of Appeals during negotiation. SBC Commc’ns, 489 Final Judgment would terminate this for the District of Columbia Circuit has F. Supp. 2d at 17; see also Microsoft, 56 action, the Court would retain held, under the APPA a court considers, F.3d at 1461 (noting the need for courts jurisdiction to construe, modify, or among other things, the relationship to be ‘‘deferential to the government’s enforce the provisions of the proposed between the remedy secured and the predictions as to the effect of the Final Judgment and punish violations specific allegations set forth in the proposed remedies’’); United States v. thereof. 1 government’s complaint, whether the Archer-Daniels-Midland Co., 272 F. decree is sufficiently clear, whether Supp. 2d 1, 6 (D.D.C. 2003) (noting that II. Standard of Judicial Review enforcement mechanisms are sufficient, the court should grant due respect to the Upon the publication of the Comment and whether the decree may positively United States’ prediction as to the effect and this Response, the United States harm third parties. See United States v. of proposed remedies, its perception of Microsoft Corp., 56 F.3d 1448, 1458–62 will have fully complied with the the market structure, and its views of (D.C. Cir. 1995). With respect to the Tunney Act and will move for entry of the nature of the case). adequacy of the relief secured by the Court approval of a consent decree the proposed Final Judgment as being decree, a court may not ‘‘engage in an requires a standard more flexible and ‘‘in the public interest.’’ 15 U.S.C. 16(e), unrestricted evaluation of what relief less strict than that appropriate to court as amended. would best serve the public.’’ United adoption of a litigated decree following The Tunney Act states that, in making States v. BNS, Inc., 858 F.2d 456, 462 a finding of liability. ‘‘[A] proposed that determination, the Court shall (9th Cir. 1988) (citing United States v. decree must be approved even if it falls consider: Bechtel Corp., 648 F.2d 660, 666 (9th short of the remedy the court would (A) the competitive impact of such Cir.