Atlantic Richfield Company

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IN THE MA ITER OF ATLANTIC RICHFIELD COMPANY MODIFYING ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT AND SEC. 7 OF THE CLAYTON ACT Docket 9089. Order, Oct. 29. 1979-Modifying Order, Oct. 7, 1980 This order reopens the proceeding and modifies definition (h)(l) and (2) of the divestiture order issued on October 29, 1979, 44 FR 67643, 94 F. C. 1054, so that, upon prior Commission approval, Noranda Mines Ltd., INCa Ltd., the Anglo American Group, or any of their respective subsidiaries (previously designated as "ineligible ), may be considered as "eligible" to purchase properties to be divested or to engage in certain joint ventures with Atlantic Richfield.

ORDER REOPENING PROCEEDING AND MODIFYING CONSENT ORDER By letter dated January 14, 1980, Noranda Mines Ltd. ("Noranda requested that the Commission reopen this proceeding to reconsider the designation of Noranda as absolutely ineligible to purchase the properties subject to divestiture under the consent order issued in this proceeding on October 29, 1979.' One of the principal objectives of the consent order was to promote deconcentration of the copper industry through divestiture of the subject properties to firms that presently are not major producers. Atlantic Richfield may divest the properties to, or engage in certain joint ventures with, any person who is "eligible" under the terms of the order.' Because eligibility based solely on market share criteria could not meet the Commission s competition objectives in this instance, three major companies-Noranda, INCO Ltd. and the Anglo Amertcan Group-were designated by name as ineligible. Those companies'- actual or potential competitive positions were believed to be inadequately reflected by reference solely to market share criteria. Upon consideration of Noranda s request, the Commission determined that it would be in the public interest to reopen the , The Commission h!l treated Noranda s correspondence as a request that the Cummissiun reopen this proceeding On ij: own initiative, at authorize by Sections 3,71 and 372 uf the Commission s Rules uf Practice Rules 3.71 and 3.72(b)(1), 45 I-' R. 21(i22 (Apr, 2, 1980), , To determine eligibility, the October 29 cons",nt ord",r defines "Eligible Person" and "Ineligible Person:' It designates as absolutely ineligible any p€ron having more than trm percent (10%) of the United States copper market for any of the three ca!endaryears preceding an attempt to purchase the suhject properties or to engage in certain joint ventures with Atlantic Richfield, Any person having between five percent (5%) and ten percent (10%) of the United States cupper market for any of the three calendar years is eligible to purchase the subject properties or to engage in certain joint ventllres with Atlantic Richfield only upon prior approval of the Commission. Three companies, Noranda, INCa Ltd, and the Anglo American Group, arc declared absolut",ly in",!igij,!e D",finitions (h) and (i) of the order , : ; ,. , ATLANTIC RICHFIELD CO. 601 600 Modifying Order proceeding for the purpose of modifying the consent order. The Commission was of the opinion that the public interest in improving competition in the copper industry may adequately be served by designating Noranda, INCO Ltd. and the Anglo American Group as eligible upon prior approval of the Commission.' On June 19 , 1980 the Commission issued an order to show cause why the consent order should not be modified. The show cause order invited interested persons to comment on the proposed change.

Having carefully considered the comments received,' the Commission continues to believe that the competitive positions of N oranda, INCO Ltd. and the Anglo American Group are not adequately reflected by reference solely to market share criteria. The Commission has concluded that the public interest would adequately served by giving each of the three firms an opportunity to present its views in the context of a specific request for prior Commission approval of a proposed divestiture transaction or a proposed joint venture subject to Paragraphs IX and X of the consent order. Now. therefore. it is hereby ordered, pursuant to Section 5(b) of the Federal Trade Commission Act, 15 U.s.c. 45(b), and Rule 3.72(b) of the Commission s Rules of Practice, 16 C.F.R. 3. 72(b) (1979), that the October 29, 1979 consent order be modified in part as follows (new language is italicized, deleted language is hyphened out): For purposes of this Order, the following definitions shall apply: (h) (1) Subject to the provisions ofsuhparagraph (2) of this definition " Eligible Person" means all Persons ethel' tRHR NeraRQa Minm, ltd, I rcg Ltd, the " agIo m.erieaR Croup. ana an)' gf fb.fi r fQEp'..-ti,,1; '''I)'iidi.u . -:ny nfh ""r P...,.,nn having not more than ten percent (10%) of the Copper Market for any of the three calendar years immediately preceding (i) an attempt by such Person to acquire a property or interest to be divested under the provisions of Paragraphs 1 through V of this Order, or (ii) an attempt by such Person to enter into a Joint Venture with Respondent which may be subject to the provisions of Paragraphs IX and X of this Order. The: " \l'g1a .\n.erieaf1 CFfJ\1fJ" means the: Ang16 : mt:iedn C.EhPv1tlt; u v :Ju LL Af. ;.... L I1J ;Lc, Cl... . O..roul;J..LeJ Ltd. , Dc &.,,, Cuu",ul;d..to.J M H"" Ltd. IIuJ",uu fia-y :M;I1 U6 Su.Clt;u6 Cu., L I1J;tc, l\Luc.al" alid n "'UUJo.c" Culpvla vJj Ltd. I.glo l.merieBn Carp8TatiaH sf Canaea Limikd, atld II. ;Lations Co". t., VPt"1 C"llJ'dtl) 8.1. .: their l€aJ'eeti. 3t1b :did. il.'I. (2) Noranda Mines Ltd., INCO Ltd., the Anglo American Group, and any of their respective sub.-;idiaries, and any Person otherwise eligible under subparagraph (1) of , Although Noranda is the only one of the three companies that ha requested a reopening of this proceeding, it. position is not substantially different from t.hat of INca Ltd. or the Anglo American Group. Therefore, the Commission has concluded that it would be appropriate lo modify the order with respect to all three lirms . Comment. were received from Nor"nd" and from respondent Atlantic Richfield. Noranda proposed an alternative rnodific"tion Atlantic Richfield stated that it dot.s not object to the Commission s propm;e, modification Modifying Order 96 F.

this definition "h" having between five percent (5%) and ten percent (10%) of the Copper Market for any of the three calendar years immediately preceding any of the events described in sections (i) and (ii) of subparagraphs (1) of this definition " , shall be considered to be an "Eligible Person" only upon prior approval of the Commission. The ''Anglo American Group " means the Anglo American Corporation of South Africa Limited, Charter Consolidated Ltd., De Beers Consolidated Mines Ltd.. Hudson Bay Mining and Smelting Co.. Limited. Minerals and Resources Corporation Ltd., Anglo American Corporation of Canada Limited. and Inspiration Consolidated Copper Company and their respective subsidiaries.

603 Modifying Order