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

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