Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices 71593 

Group to retain voting shares of 

Charlevoix First Corporation, and 

thereby indirectly retain voting shares of 

Charlevoix State Bank, both in 

Charlevoix, Michigan. 

B. Federal Reserve Bank of St. Louis 

(Yvonne Sparks, Community 

Development Officer) P.O. Box 442, St. 

Louis, Missouri 63166–2034: 

1. Thomas H. Brouster, Sr., St. Louis, 

Missouri, acting individually, and in 

concert with a control group which 

consists of Thomas H. Brouster Trust 

TTE; Thomas H. Brouster Family Trust 

and Meredith E. Brouster Trust, 

Brouster & Associates, LLC; Thomas H. 

Brouster Consulting Pension Trust; and 

Thomas H. Brouster Consulting Pension 

Trust II; Lawrence P. Keeley, Jr.; Allan 

D. Ivie, IV; Allan D. Ivie, IV Self 

Directed IRA; David Sindelar, all of St. 

Louis, Missouri; Gaines S. Dittrich Self 

Directed IRA; Gaines S. Dittrich, Trustee 

of The Gaines S. Dittrich Revocable 

Trust dated May 6, 1997, as amended; 

and Dittrich & Associates, all of Rogers, 

Arkansas; Robert M. Cox, Jr., Frontenac, 

Missouri; Dr. Richard M. Demko, 

Chesterfield, Missouri; Scott A. 

Sachtleben, Belleville, Illinois; Robert K. 

Jakel Living Trust; Robert Jakel Trustee; 

Eric K. Jakel as trustee of the Eric K. 

Jakel Living Trust u/a dated 6/6/85, all 

of Highland, Illinois; Sterling K. Jakel 

Living Trust dated 5/3/85, Sterling Jakel 

Trustee, Naples, Florida; Otto K. Jakel 

Living Trust dated 11/26/91; Otto K. 

Jakel Trustee, all of Clarmont, Georgia; 

Gordon Jakel, Scottsdale, Arizona; John 

W. Bradley Revocable Living Trust 

dated 2/19/92; John B. Bradley 

Revocable Living Trust dated 12/12/07, 

John Bradley, Trustee, all of Kirkwood, 

Missouri; and Ned Stanley, Ladue, 

Missouri; to acquire voting shares of 

Reliance Bancshares, Inc., Des Peres, 

Missouri, and thereby indirectly acquire 

voting shares of Reliance Bank, St. 

Louis, Missouri. 

Board of Governors of the Federal Reserve 

System, November 28, 2012. 

Michael J. Lewandowski, 

Assistant Secretary of the Board. 

[FR Doc. 2012–29110 Filed 11–30–12; 8:45 am] 

BILLING CODE 6210–01–P 

FEDERAL RESERVE SYSTEM 

Change in Bank Control Notices; 

Acquisitions of Shares of a Bank or 

Bank Holding Company 

The notificants listed below have 

applied under the Change in Bank 

Control Act (12 U.S.C. 1817(j)) and 

§ 225.41 of the Board’s Regulation Y (12 

CFR 225.41) to acquire shares of a bank 

or bank holding company. The factors 

that are considered in acting on the 

notices are set forth in paragraph 7 of 

the Act (12 U.S.C. 1817(j)(7)). 

The notices are available for 

immediate inspection at the Federal 

Reserve Bank indicated. The notices 

also will be available for inspection at 

the offices of the Board of Governors. 

Interested persons may express their 

views in writing to the Reserve Bank 

indicated for that notice or to the offices 

of the Board of Governors. Comments 

must be received not later than 

December 17, 2012. 

A. Federal Reserve Bank of 

Minneapolis (Jacqueline G. King, 

Community Affairs Officer) 90 

Hennepin Avenue, Minneapolis, 

Minnesota 55480–0291: 

1. Stephen Wellington, Jr., Saint Paul, 

Minnesota; to acquire voting shares of 

Plato Holdings, Inc., and thereby 

indirectly acquire voting shares of Drake 

Bank, both in Saint Paul, Minnesota. 

Board of Governors of the Federal Reserve 

System, November 27, 2012. 

Margaret McCloskey Shanks, 

Deputy Secretary of the Board. 

[FR Doc. 2012–29049 Filed 11–30–12; 8:45 am] 

BILLING CODE 6210–01–P 

FEDERAL RESERVE SYSTEM 

Formations of, Acquisitions by, and 

Mergers of Savings and Loan Holding 

Companies 

The companies listed in this notice 

have applied to the Board for approval, 

pursuant to the Home Owners’ Loan Act 

(12 U.S.C. 1461 et seq.) (HOLA), 

Regulation LL (12 CFR part 238), and 

Regulation MM (12 CFR part 239), and 

all other applicable statutes and 

regulations to become a savings and 

loan holding company and/or to acquire 

the assets or the ownership of, control 

of, or the power to vote shares of a 

savings association and nonbanking 

companies owned by the savings and 

loan holding company, including the 

companies listed below. 

The applications listed below, as well 

as other related filings required by the 

Board, are available for immediate 

inspection at the Federal Reserve Bank 

indicated. The application also will be 

available for inspection at the offices of 

the Board of Governors. Interested 

persons may express their views in 

writing on the standards enumerated in 

the HOLA (12 U.S.C. 1467a(e)). If the 

proposal also involves the acquisition of 

a nonbanking company, the review also 

includes whether the acquisition of the 

nonbanking company complies with the 

standards in section 10(c)(4)(B) of the 

HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless 

otherwise noted, nonbanking activities 

will be conducted throughout the 

United States. 

Unless otherwise noted, comments 

regarding each of these applications 

must be received at the Reserve Bank 

indicated or the offices of the Board of 

Governors not later than December 27, 

2012. 

A. Federal Reserve Bank of St. Louis 

(Yvonne Sparks, Community 

Development Officer) P.O. Box 442, St. 

Louis, Missouri 63166–2034: 

1. Scottrade Financial Services, Inc., 

Town and Country, Missouri; to acquire 

100 percent of the voting shares of 

Bunker Hill Bancorp, Inc., St. Louis, 

Missouri, and thereby indirectly acquire 

voting shares of Boulevard Bank, 

Neosho, Missouri. 

Board of Governors of the Federal Reserve 

System, November 27, 2012. 

Margaret McCloskey Shanks, 

Deputy Secretary of the Board. 

[FR Doc. 2012–29050 Filed 11–30–12; 8:45 am] 

BILLING CODE 6210–01–P 

FEDERAL TRADE COMMISSION 

[File No. 121 0081] 

Robert Bosch GmbH; Analysis of 

Agreement Containing Consent Orders 

To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices or unfair 

methods of competition. The attached 

Analysis to Aid Public Comment 

describes both the allegations in the 

draft complaint and the terms of the 

consent order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before December 26, 2012. 

ADDRESSES: Interested parties may file a 

comment at https:// 

ftcpublic.commentworks.com/ftc/ 

boschspxconsent online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Bosch, File No. 121 

0081’’ on your comment and file your 

comment online at https:// 

ftcpublic.commentworks.com/ftc/ 

boschspxconsent by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, mail or deliver your comment to 

the following address: Federal Trade 


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71594 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices 

1 In particular, the written request for confidential 

treatment that accompanies the comment must 

include the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. See 

FTC Rule 4.9(c), 16 CFR 4.9(c). 

Commission, Office of the Secretary, 

Room H–113 (Annex D), 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline K. Mendel (202–326–2603), 

FTC, Bureau of Competition, 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to Section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing a consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreement, and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained from the FTC 

Home Page (for November 26, 2012), on 

the World Wide Web, at http:// 

www.ftc.gov/os/actions.shtm. A paper 

copy can be obtained from the FTC 

Public Reference Room, Room 130–H, 

600 Pennsylvania Avenue NW., 

Washington, DC 20580, either in person 

or by calling (202) 326–2222. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before December 26, 2012. Write 

‘‘Bosch, File No. 121 0081’’ on your 

comment. Your comment—including 

your name and your state—will be 

placed on the public record of this 

proceeding, including, to the extent 

practicable, on the public Commission 

Web site, at http://www.ftc.gov/os/ 

publiccomments.shtm. As a matter of 

discretion, the Commission tries to 

remove individuals’ home contact 

information from comments before 

placing them on the Commission Web 

site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, like anyone’s Social 

Security number, date of birth, driver’s 

license number or other state 

identification number or foreign country 

equivalent, passport number, financial 

account number, or credit or debit card 

number. You are also solely responsible 

for making sure that your comment does 

not include any sensitive health 

information, like medical records or 

other individually identifiable health 

information. In addition, do not include 

any ‘‘[t]rade secret or any commercial or 

financial information which * * * is 

privileged or confidential,’’ as discussed 

in Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and FTC Rule 4.10(a)(2), 16 CFR 

4.10(a)(2). In particular, do not include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

you have to follow the procedure 

explained in FTC Rule 4.9(c), 16 CFR 

4.9(c).1 Your comment will be kept 

confidential only if the FTC General 

Counsel, in his or her sole discretion, 

grants your request in accordance with 

the law and the public interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comments online. To make sure that the 

Commission considers your online 

comment, you must file it at https:// 

ftcpublic.commentworks.com/ftc/ 

boschspxconsent by following the 

instructions on the web-based form. If 

this Notice appears at http:// 

www.regulations.gov/#!home, you also 

may file a comment through that Web 

site. 

If you file your comment on paper, 

write ‘‘Bosch, File No. 121 0081’’ on 

your comment and on the envelope, and 

mail or deliver it to the following 

address: Federal Trade Commission, 

Office of the Secretary, Room H–113 

(Annex D), 600 Pennsylvania Avenue 

NW., Washington, DC 20580. If possible, 

submit your paper comment to the 

Commission by courier or overnight 

service. 

Visit the Commission Web site at 

http://www.ftc.gov to read this Notice 

and the news release describing it. The 

FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before December 26, 2012. You can find 

more information, including routine 

uses permitted by the Privacy Act, in 

the Commission’s privacy policy, at 

http://www.ftc.gov/ftc/privacy.htm. 

Analysis of Agreement Containing 

Consent Order To Aid Public Comment 

I. Introduction 

The Federal Trade Commission 

(‘‘Commission’’) has accepted from 

Robert Bosch GmbH (‘‘Bosch’’), subject 

to final approval, an Agreement 

Containing Consent Orders (‘‘Consent 

Agreement’’), which is designed to 

remedy the anticompetitive effects 

resulting from Bosch’s acquisition of 

SPX Service Solutions U.S. LLC (‘‘SPX 

Service Solutions’’) from SPX 

Corporation (‘‘SPX’’) and to remedy 

anticompetitive conduct by SPX in 

violation of Section 5 of the FTC Act. 

Under the terms of the Consent 

Agreement, Bosch is required to (1) 

divest its air conditioning recycling, 

recovery, and recharge (‘‘ACRRR’’) 

business, including RTI Technologies, 

Inc. (‘‘RTI’’), to Mahle Clevite, Inc. 

(‘‘Mahle’’) by December 31, 2012; (2) 

terminate agreements with any persons 

that limit the ability of SPX’s 

competitors, including Bosch, from 

advertising, servicing, distributing, or 

selling any ACRRR product in the U.S. 

market; and (3) make available for 

licensing certain patents which may be 

used in the implementation of two 

industry standards established by SAE 

International, an industry association 

responsible for setting standards for 

products so that they comply with 

regulations of the U.S. Environmental 

Agency (‘‘EPA’’). The Consent 

Agreement has been placed on the 

public record for 30 days to solicit 

comments from interested persons. 

Comments received during this period 

will become part of the public record. 

After 30 days, the Commission will 

again review the Consent Agreement 

and the comments received, and will 

decide whether it should withdraw from 

the Consent Agreement, modify it, or 

make it final. 

On January 23, 2012, Bosch entered 

into an agreement to acquire the SPX 

Service Solutions business from SPX. 

The Commission’s complaint alleges the 

facts described below and that the 

proposed acquisition, if consummated, 

would violate Section 7 of the Clayton 

Act, as amended, 15 U.S.C. 18, and 

Section 5 of the FTC Act, as amended, 

15 U.S.C. 45, by lessening competition 

in the market for ACRRR devices. 

II. The Parties 

Bosch, headquartered in Stuttgart, 

Germany and with U.S. operations 

based in Broadview, Illinois, is a global 

supplier of automotive and industrial 

technology, consumer goods, and 

building technology. North American 

sales represent 18% of Bosch’s 


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revenues, and Automotive Technology 

is Bosch’s largest business sector in 

North America. Bosch is the second 

leading U.S. supplier of ACRRR 

equipment. It acquired RTI in 2010, and 

sells ACRRR equipment under both the 

Bosch and RTI brand, which account for 

approximately 10% of the U.S. ACRRR 

market. 

Headquartered in Warren, Michigan, 

SPX is a diversified global supplier of 

highly engineered products for the 

following industries: power and energy, 

food and beverage, vehicle and transit, 

infrastructure and industrial processes. 

SPX’s Service Solutions business is a 

global supplier of automotive tools, 

equipment and services, for both 

original equipment manufacturers 

(‘‘OEMs’’) and aftermarket repair shops 

and technicians. SPX’s Robinair brand 

is the leading supplier of ACRRR 

equipment in the United States, 

accounting for over 80% of sales in that 

market. 

III. The Product and Structure of the 

Market 

Bosch’s proposed acquisition of SPX 

Service Solutions would create a virtual 

monopoly in the ACRRR market. 

ACRRR devices are stand-alone pieces 

of equipment used by automotive 

technicians to remove refrigerant from a 

vehicle’s on-board air conditioning 

system, store the refrigerant while the 

air conditioning system is being 

serviced, and recycle the refrigerant 

back into the system, adding more as 

necessary. These tools are required to 

repair or service motor vehicle air 

conditioning systems because no other 

equipment performs the removal, 

recycling, and recharging functions 

while staying compliant with EPA 

regulations prohibiting refrigerant from 

escaping into the atmosphere. Devices 

that only extract refrigerant from air 

conditioning systems but do not recycle 

or recharge them are not cost-effective 

alternatives because they do not store or 

dispose of extracted refrigerant as 

required. As a result, if the price of 

ACRRR equipment were to increase 5– 

10%, customers would not switch to 

extraction-only equipment or to 

equipment that flushes other fluids from 

vehicles, which cannot be used in its 

place. 

The relevant geographic area in which 

to evaluate the market for ACRRR 

equipment is the United States. 

Environmental regulations vary by 

country, so ACRRR machines designed 

to adhere to the regulations of one 

country are not necessarily compatible 

with those of other countries. In 

addition, differing electrical power 

specifications across the world 

necessitate that the internal pumps and 

motors vary to meet differing 

specification. As a result, purchasers in 

the United States could not turn to 

suppliers in other countries for ACRRR 

equipment. 

SPX’s Robinair brand holds a 

dominant position in the ACRRR 

market, with a share of over 80%. 

Bosch’s RTI and Bosch brands comprise 

approximately 10% of the market and 

are Robinair’s most significant 

competition. Four other firms selling 

ACRRR equipment in the U.S. together 

account for the balance of ACRRR sales. 

Thus, the combination of Bosch and 

SPX would confer a virtual monopoly 

position on Bosch. The elimination of 

the direct competition between Robinair 

and Bosch would allow the combined 

entity to exercise market power by 

unilaterally increasing price, slowing 

innovation, or lowering its levels of 

service. 

IV. Entry 

Entry into the ACRRR market 

sufficient to deter the anticompetitive 

effects of this transaction is unlikely to 

occur in the next two years. While 

designing and engineering a system to 

work effectively and meet industry 

standards may be possible within a 

relatively short time frame, other 

barriers, including the challenges of 

obtaining effective distribution and 

developing a service network, make 

successful entry very difficult. 

Advertising through leading automotive 

wholesale distributors is the most 

effective means of promoting ACRRR to 

independent auto repair shops and 

rapid-turnaround repair of ACRRR 

equipment is critical because repair 

shops cannot provide air conditioning 

service without this equipment. 

Obtaining effective distribution and 

service networks has been especially 

challenging for competitors of SPX 

because of limitations SPX puts on 

distributors and service centers that sell 

and service Robinair-brand ACRRR. 

Another factor affecting the likelihood 

of significant new entry or expansion is 

the costs associated with meeting 

industry standards, which are 

established by SAE International, 

formerly the Society of Automotive 

Engineers. 

IV. Effects of the Acquisition 

The proposed acquisition would 

cause significant anticompetitive harm 

to consumers in the U.S. ACRRR device 

market. The transaction would combine 

SPX’s Robinair brand ACRRR, that 

already commands over 80% of the 

market with its leading competitor, 

Bosch, with its Bosch- and RTI ACRRR 

brands, with approximately 10% of the 

market, creating a near-monopolist with 

a share of over 90%. The impact of 

eliminating the competition between 

Bosch and SPX in the ACRRR market is 

highly likely to result in consumers, 

who are automotive repair shops and 

technicians, paying higher prices for 

ACRRR devices. 

V. The Consent Agreement 

A. The Merger Remedy 

The proposed Consent Agreement 

eliminates the competitive concerns 

raised by Bosch’s proposed acquisition 

of SPX Service Solutions by requiring 

the divestiture of Bosch’s assets relating 

to the manufacture and sale of ACRRR 

devices in the United States, including 

the RTI business. Bosch and SPX have 

agreed to sell the U.S. ACRRR assets to 

Mahle Clevite, Inc. (‘‘Mahle’’) before 

December 31, 2012. 

Mahle possesses the resources, 

industry experience, and financial 

viability to successfully purchase and 

manage the divestiture assets and 

continue as an effective competitor in 

the ACRRR market. Mahle, 

headquartered in Stuttgart, Germany 

with U.S. operations based in 

Farmington, Michigan, is a supplier and 

development partner to the automotive 

and engine industry. Mahle’s diverse 

product lines include aftermarket parts 

and automotive equipment sold a 

similar customer base as RTI. Mahle’s 

significant size and global presence will 

allow it to quickly support additional 

expansion in the ACRRR market and 

replace the loss of competition 

presented by Bosch’s acquisition of SPX 

SS. 

Pursuant to the Consent Agreement, 

Mahle would receive all the assets 

necessary to operate Bosch’s current 

U.S. ACRRR business, including RTI’s 

operations in York, Pennsylvania which 

include the RTI manufacturing plant, 

current inventory, and relevant 

intellectual property. In addition to 

ensuring that current RTI employees 

will continue their employment with 

Mahle, the Consent Agreement requires 

Bosch to provide access to certain key 

employees who may be necessary to 

help facilitate the transition and fully 

establish the Bosch ACRRR business 

within Mahle. The Consent Agreement 

also requires Bosch to transfer all 

relevant intellectual property and all 

contracts and confidential business 

information associated with the ACRRR 

business. In addition, the Consent 

Agreement requires Bosch to license, 

royalty-free, certain SPX patents that 

may be essential to the practice of two 

industry standards to Mahle. 


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2The licensing obligation in this matter was a 

FRAND obligation, although RAND (reasonable and 

non-discriminatory) licensing obligations raise 

similar issues. 

B. The Conduct Remedy 

In addition, the Consent Agreement 

includes a provision that requires Bosch 

to make certain patents available to its 

competitors in the ACRRR market. 

During its merger investigation, the 

Commission uncovered evidence that 

SPX holds certain potentially standardessential patents necessary for 

implementing two SAE International 

ACRRR industry standards, J–2788 and 

J–2843, which govern the operation of 

ACRRR machines that handle the two 

most common types of air conditioning 

refrigerant in vehicles today. SAE 

International adopted J–2788 and J– 

2843 while SPX was a member of the 

SAE Interior Climate Control 

Committee, the committee responsible 

for developing the standards. SAE 

International’s rules include an 

obligation by working group members to 

disclose any patents or patent 

applications that would be essential to 

the practice of a standard being 

developed, and to offer a license to such 

patents on either royalty-free or fair, 

reasonable, and non-discriminatory 

(‘‘FRAND’’) terms. After the standards 

were adopted, SPX issued a letter of 

assurance to SAE International 

acknowledging that it held patents that 

were potentially essential to both 

standards and committing to license 

them under FRAND terms. Following 

this letter of assurance, however, SPX 

continued to seek previously initiated 

injunction actions against competitors 

using those patents to implement the 

SAE International standards. 

SPX’s suit for injunctive relief against 

implementers of its standard essential 

patents constitutes a failure to license 

its standard-essential patents under the 

FRAND terms it agreed to while 

participating in the standard setting 

process, and is an unfair method of 

competition actionable under Section 5 

of the FTC Act. Standard setting is 

‘‘widely acknowledged to be one of the 

engines driving the modern economy.’’ 

Participants in the standard setting 

process rely on the licensing 

commitments made by patent holders 

during the standard setting process to 

protect them against patent hold-up. 

Patent hold-up can occur when, after an 

entire industry has become ‘‘locked in’’ 

to practicing a standard, a patent holder 

reneges on a licensing obligation and 

seeks to exercise the market power that 

accrues to a patent by virtue of being 

incorporated in the standard. FRAND 

commitments and licensing obligations, 

such as those at issue here, are an 

important way to mitigate the risk of 

patent hold-up, and are common in the 

standard setting process. Seeking 

injunctions against willing licensees of 

FRAND-encumbered standard essential 

patents, as SPX is alleged to have done 

here, is a form of FRAND evasion and 

can reinstate the risk of patent hold-up 

that FRAND commitments are intended 

to ameliorate. As the Commission has 

previously explained, ‘‘negotiation that 

occurs under threat of an [injunction] 

may be weighted heavily in favor of the 

patentee in a way that is in tension with 

the [F]RAND commitment. High 

switching costs combined with the 

threat of an [injunction] could allow a 

patentee to obtain unreasonable 

licensing terms despite its [F]RAND 

commitment, not because its invention 

is valuable, but because implementers 

are locked in to practicing the 

standard.’’ 

Bosch has agreed in the Consent 

Order to resolve the violations 

committed by SPX. The Consent Order 

requires Bosch to offer a royalty-free 

license to all potential implementers for 

certain enumerated patents for the 

purpose of manufacturing ACRRR 

devices in the United States. While a 

royalty-free license may not be an 

appropriate remedy in every case 

involving evasion of a FRAND 

commitment, in this matter Bosch has 

chosen to license these patents to the 

buyer of its ACRRR business, Mahle, 

royalty-free, and a license to other 

market place participants on the same 

terms is necessary to ensure that the 

merger remedy is not inequitable in 

application. The Consent Order further 

requires Bosch to deliver to the SAE a 

letter of assurance that makes a binding, 

irrevocable commitment to license any 

additional patents that Bosch may 

acquire in the future that are essential 

to practicing the J–2788 or J–2843 

standards on FRAND terms to any third 

party that wishes to use such patents to 

produce an ACRRR device for sale in 

the United States. Pursuant to its 

FRAND obligations, Bosch has agreed 

not seek injunctive relief against such 

third parties, unless the third party 

refuses in writing to license the patent 

consistent with the letter of assurance, 

or otherwise refuses to license the 

patent on terms that comply with the 

letter of assurance as determined by a 

process agreed upon by both parties 

(e.g., arbitration) or a court. 

The Consent Agreement also requires 

that Bosch discontinue its restrictive 

arrangements with wholesale 

distributors and independent service 

technicians. Bosch will be prevented 

from enforcing any agreement that 

restricts a distributor or repair service 

provider from advertising, servicing, 

distributing, or selling any ACRRR 

product from any third party in the 

United States. Bosch will be prevented 

from entering into such agreements for 

ten years after the date of the Order. 

This provision allows entry by other 

competitors, and will allow the existing 

competitors in the ACRRR market, 

including Mahle, to more easily have 

access to leading wholesale distributors 

and service providers to assemble repair 

networks to which customers can turn 

after they have purchased ACRRRs. 

The purpose of this analysis is to 

facilitate public comment on the 

Consent Agreement, and it is not 

intended to constitute an official 

interpretation of the proposed Decision 

and Order or to modify its terms in any 

way. 

Statement of the Federal Trade 

Commission 

The Federal Trade Commission 

(‘‘Commission’’) has voted to issue for 

public comment a Complaint and Order 

against Robert Bosch GmbH (‘‘Bosch’’) 

designed to remedy the allegedly 

anticompetitive effects of Bosch’s 

acquisition of SPX Services (‘‘SPX’’), a 

division of SPX Corporation. The 

Commission has reason to believe that 

the proposed acquisition would cause 

significant anticompetitive harm to 

consumers by creating a virtual 

monopoly in the market for automobile 

air conditioning servicing equipment 

known as ‘‘air conditioning recycling, 

recovery, and recharge devices’’ or 

‘‘ACRRRs.’’ The proposed Order 

eliminates the anticompetitive concerns 

raised by the proposed acquisition by 

requiring the divestiture of Bosch’s 

assets relating to the manufacture and 

sale of ACRRRs to Mahle Clevite, Inc. 

The proposed Order further requires 

Bosch to discontinue restrictive 

arrangements SPX maintained with 

wholesale distributors and independent 

service technicians. 

The Complaint also alleges that, 

before its acquisition by Bosch, SPX 

reneged on a licensing commitment 

made to two standard-setting bodies to 

license its standards-essential patents 

(‘‘SEPs’’) relating to ACRRRs on fair, 

reasonable and non-discriminatory 

terms (‘‘FRAND’’) by seeking 

injunctions against willing licensees of 

those SEPs.2 We have reason to believe 

this conduct tended to impair 

competition in the market for these 

important automobile air conditioning 

servicing devices. To its credit, Bosch 

has abandoned these claims for 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices 71597 

3See In re Dell Computer Corp., 121 F.T.C. 616 

(1996); In re Union Oil Company of California, 2004 

FTC LEXIS 115 (July 7, 2004); In re Rambus, Inc., 

Dkt. No. 9302, 2006 FTC LEXIS 101 (Aug. 20, 2006), 

rev’d, Rambus Inc. v. F.T.C., 522 F.3d 456 (D.C. Cir. 

2008); In re Negotiated Data Solutions LLC, FTC 

File No. 051–0094, Decision and Order (Jan. 23, 

2008), available at http://www.ftc.gov/os/caselist/ 

0510094/080122do.pdf. 

4See, e.g., Allied Tube & Conduit Corp. v. Indian 

Head, Inc., 486 U.S. 492, 500–01 (1988) (noting that 

‘‘private standard-setting associations have 

traditionally been objects of antitrust scrutiny’’ 

because of their potential use as a means for 

anticompetitive agreements among competitors). 

5Third Party United States Federal Trade 

Commission’s Statement on the Public Interest filed 

on June 6, 2012 in In re Certain Wireless 

Communication Devices, Portable Music & Data 

Processing Devices, Computers and Components 

Thereof, Inv. No. 337–TA–745, available at 

www.ftc.gov/os/2012/06/1206ftcwirelesscom.pdf 

and in In re Certain Gaming and 

Entertainment\Consoles, Related Software, and 

Components Thereof, Inv. No. 337–TA–752, 

available at http://www.ftc.gov/os/2012/06/ 

1206ftcgamingconsole.pdf. 

6 Id. at 3–4 (‘‘[A] royalty negotiation that occurs 

under threat of an exclusion order may be weighted 

heavily in favor of the patentee in a way that is in 

tension with the RAND commitment. High 

switching costs combined with the threat of an 

exclusion order could allow a patentee to obtain 

unreasonable licensing terms despite its RAND 

commitment, not because its invention is valuable, 

but because implementers are locked in to 

practicing the standard. The resulting imbalance 

between the value of patented technology and the 

rewards for innovation may be especially acute 

where the exclusion order is based on a patent 

covering a small component of a complex 

multicomponent product. In these ways, the threat 

of an exclusion order may allow the holder of a 

RAND-encumbered SEP to realize royalty rates that 

reflect patent hold-up, rather than the value of the 

patent relative to alternatives, which could raise 

prices to consumers while undermining the 

standard setting process.’’). 

7See, e.g., Microsoft Corp. v. Motorola, Inc., 696 

F.3d 872, 885 (9th Cir. 2012) (‘‘Implicit in such a 

sweeping promise is, at least arguably, a guarantee 

that the patent-holder will not take steps to keep 

would-be users from using the patented material, 

such as seeking an injunction, but will instead 

proffer licenses consistent with the commitment 

made.’’); Apple, Inc. v. Motorola, Inc., No. 1:11–cv– 

08540, 2012 U.S. Dist. LEXIS 89960, at *45 (N.D. 

Ill. June 22, 2012) (Posner, J., sitting by designation) 

(‘‘I don’t see how, given FRAND, I would be 

justified in enjoining Apple from infringing the ’898 

[patent] unless Apple refuses to pay a royalty that 

meets the FRAND requirement. By committing to 

license its patents on FRAND terms, Motorola 

committed to license the ‘898 to anyone willing to 

pay a FRAND royalty and thus implicitly 

acknowledged that a royalty is adequate 

compensation for a license to use that patent. How 

could it do otherwise?’’). 

8We have no reason to believe that, in this case, 

a monopolization count under the Sherman Act was 

appropriate. However, the Commission has reserved 

for another day the question whether, and under 

what circumstances, similar conduct might also be 

challenged as an unfair act or practice, or as 

monopolization. 

9See, e.g., F.T.C. v. R.F. Keppel & Bros., Inc., 291 

U.S. 304, 310–313 (1934); F.T.C. v. Cement Inst., 

333 U.S. 683, 693 & n.6 (1948); F.T.C. v. Sperry & 

Hutchinson Co., 405 U.S. 233, 241–244 (1972). 

injunctive relief and agreed to license 

the SEPs at issue. 

This case is another chapter in the 

Commission’s longstanding 

commitment to safeguard the integrity 

of the standard-setting process.3

Standard setting can deliver substantial 

benefits to American consumers, 

promoting innovation, competition, and 

consumer choice. But standard setting 

also risks harm to consumers. Because 

standard setting often displaces the 

normal competitive process with the 

collective decision-making of 

competitors, preserving the integrity of 

the standard-setting process is central to 

ensuring standard setting works to the 

benefit of, rather than against, 

consumers.4 The Commission’s action 

today does just that. 

As explained in the Commission’s 

unanimous filings before the United 

States International Trade Commission 

in June 2012, the threat of injunctive 

relief ‘‘in matters involving RANDencumbered SEPs, where infringement 

is based on implementation of 

standardized technology, has the 

potential to cause substantial harm to 

U.S. competition, consumers and 

innovation.’’ 5 By threatening to exclude 

standard-compliant products from the 

marketplace, a SEP holder can demand 

and realize royalty payments that reflect 

the investments firms make to develop 

and implement the standard, rather than 

the economic value of the technology 

itself.6 This can harm incentives to 

develop standard-compliant products. 

The threat of an injunction can also lead 

to excessive royalties that can be passed 

along to consumers in the form of higher 

prices. 

There is increasing judicial 

recognition, coinciding with the view of 

the Commission, of the tension between 

offering a FRAND commitment and 

seeking injunctive relief.7 Patent holders 

that seek injunctive relief against 

willing licensees of their FRANDencumbered SEPs should understand 

that in appropriate cases the 

Commission can and will challenge this 

conduct as an unfair method of 

competition under Section 5 of the FTC 

Act.8 Importantly, stopping this conduct 

using a stand-alone Section 5 unfair 

methods of competition claim, rather 

than one based on the Sherman Act, 

minimizes the possibility of follow-on 

treble damages claims. Violations of 

Section 5 that are not also violations of 

the antitrust laws do not support valid 

federal antitrust claims for treble 

damages. There is also no private right 

of action under Section 5, and a Section 

5 action has no preclusive effect in 

subsequent federal court cases. 

In her dissent, Commissioner 

Ohlhausen claims that today’s decision 

imposes liability on protected 

petitioning activity and effectively 

undermines the role of federal courts 

and the ITC in the adjudication of SEPrelated disputes. We respectfully 

disagree. As alleged in the Complaint, 

SPX committed to license its SEPs on 

FRAND terms. In doing so, we have 

reason to believe SPX voluntarily gave 

up the right to seek an injunction 

against a willing licensee. Moreover, the 

fact that both the federal courts and the 

ITC have the authority to deny 

injunctive relief where the SEP holder 

has broken its FRAND commitment 

does not mean that this conduct is not 

itself a violation of Section 5 or within 

our reach. 

We also take issue with Commissioner 

Ohlhausen’s suggestion that the 

Commission’s action ‘‘appears to lack 

regulatory humility.’’ The Commission 

is first and foremost a law enforcement 

agency, and this consent decree, like all 

of our unfair methods of competition 

enforcement actions, is a fact-specific 

response to a very real problem that 

threatens competition and consumer 

welfare. 

Indeed, we view this action as well 

within our Section 5 authority. The 

plain language of Section 5, the relevant 

legislative history, and a long line of 

Supreme Court cases all affirm that 

Section 5 extends beyond the Sherman 

Act.9 Moreover, this is not a 

circumstance where, as Commissioner 

Ohlhausen contends, there are no 

discernible limiting principles. SPX’s 

failure to abide by its commitment took 

place in the standard-setting context. In 

that setting, long an arena of concern to 

the Commission, a breach of contract 

risks substantial consumer injury. The 

standard setting context, together with 

the acknowledgment that a FRAND 

commitment also depends on the 

presence of a willing licensee, 

appropriately limit the Commission’s 

enforcement policy and provide 

guidance to standard-setting 

participants. 

For these reasons, we find 

Commissioner Ohlhausen’s analogy of 

SPX’s conduct to a ‘‘garden variety 

breach-of-contract’’ to be unpersuasive. 

While not every breach of a FRAND 

licensing obligation will give rise to 

Section 5 concerns, when such a breach 

tends to undermine the standard-setting 

process and risks harming American 

consumers, the public interest demands 

action rather than inaction from the 

Commission. 


emcdonald on DSK67QTVN1PROD with NOTICES
71598 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices 

10 I concur with the consent agreement reached in 

this matter insofar as it requires the divestiture of 

certain assets to remedy the Clayton Act Section 7 

violation that likely would have resulted from the 

proposed transaction. I do have strong reservations, 

however, about the relatively broad fencing-in relief 

included in the proposed Decision and Order that 

requires the respondent to cancel the exclusivity 

provisions in its contracts with various distributors 

and equipment servicers. See Decision and Order ¶ 

III. Fencing-in relief that modifies contracts entered 

into by participants across an industry raises 

concerns for me about whether such relief goes 

beyond that which is necessary to protect the 

viability of the divestiture buyer and thus effectuate 

the legitimately pursued remedy in this matter. 

11See Complaint ¶¶ 11–20, 23. See also Decision 

and Order ¶ IV; Analysis of Agreement Containing 

Consent Order to Aid Public Comment § V.B. 

12See, e.g., In re Rambus, Inc., Dkt. No. 9302 

(FTC Aug. 2, 2006) (Commission opinion) (finding 

deception that undermined the standard-setting 

process), rev’d, Rambus Inc. v. FTC, 522 F.3d 456 

(DC Cir. 2008); In re Union Oil Co. of Cal., 138 

F.T.C. 1 (2003) (Commission opinion) (same); In re 

Dell Computer Corp., 121 F.T.C. 616 (1996) (consent 

order) (alleging same). 

13See Eastern R.R. Presidents Conference v. Noerr 

Motor Freight, 365 U.S. 127 (1961); United Mine 

Workers of Am. v. Pennington, 381 U.S. 657 (1965); 

California Motor Transp. Co. v. Trucking Unlimited, 

404 U.S. 508 (1972) (applying Noerr-Pennington 

doctrine to petitioning of judicial branch). 

14See Apple, Inc. v. Motorola Mobility, Inc., No. 

3:11–cv–00178–BBC, 2012 WL 3289835, at *12–14 

(W.D. Wis. Aug. 10, 2012) (dismissing Apple’s 

Sherman Act and state unfair competition claims 

and holding that Motorola’s filing of litigation in 

the federal courts and ITC on its FRANDencumbered SEPs was immune under Noerr). 

15Third Party United States Federal Trade 

Commission’s Statement on the Public Interest, In 

re Certain Wireless Communications Devices, 

Portable Music and Data Processing Devices, 

Computers and Components Thereof, Inv. No. 337– 

TA–745 (Int’l Trade Comm’n June 6, 2012), 

available at http://www.ftc.gov/os/2012/06/ 

1206ftcwirelesscom.pdf. 

16Oversight of the Impact on Competition of 

Exclusion Orders to Enforce Standard-Essential 

Patents: Hearing Before the S. Comm. on the 

Judiciary, 112th Cong. 1–2 (2012) (statement of the 

Federal Trade Commission), available at http:// 

www.ftc.gov/os/testimony/ 

120711standardpatents.pdf. 

17The cases cited in the Commission’s statement 

for the proposition that there is an ‘‘increasing 

judicial recognition’’ on the tension between 

FRAND commitments and injunctive relief, to the 

extent that they reveal anything, show that the 

courts are not freely issuing injunctions against 

willing licensees of FRAND-encumbered SEPs. See 

Statement of the Commission, at 2 n.6. Thus, far 

from supporting the position that the FTC should 

block access to other institutions, these cases 

clearly demonstrate that the courts are well 

equipped to address issues involving injunctions on 

FRAND-encumbered SEPs. 

18 In re Negotiated Data Solutions LLC, FTC File 

No. 051–0094, Decision and Order (Jan. 23, 2008), 

available at http://www.ftc.gov/os/caselist/0510094/ 

080923ndsdo.pdf. 

19See, e.g., E.I. du Pont de Nemours & Co. v. FTC, 

729 F.2d 128, 139 (2d Cir. 1984) (‘‘Ethyl’’); (‘‘[T]he 

Commission owes a duty to define the conditions 

under which conduct * * * would be unfair so that 

business will have an inkling as to what they can 

lawfully do rather than be left in a state of complete 

unpredictability.’’); FTC v. Abbott Labs., 853 F. 

Supp. 526, 535–36 (D.D.C. 1994) (‘‘The Second 

Circuit stated emphatically that some workable 

standard must exist for what is or is not to be 

considered an unfair method of competition under 

§ 5. Otherwise, companies subject to FTC 

prosecution would be the victims of ‘uncertain 

guesswork rather than workable rules of law.’’’) 

(quoting Ethyl, 729 F.2d at 139); ABA Section of 

Antitrust Law, Antitrust Law Developments 661 

(7th ed. 2012) (‘‘FTC decisions have been 

overturned despite proof of anticompetitive effect 

where the courts have concluded that the agency’s 

legal standard did not draw a sound distinction 

between conduct that should be proscribed and 

conduct that should not.’’). 

20See In re Negotiated Data Solutions LLC, FTC 

File No. 051–0094, Dissenting Statement of 

Chairman Majoras, at 1–2 (Jan. 23, 2008), available 

at http://www.ftc.gov/os/caselist/0510094/ 

080122majoras.pdf. 

21See id., Dissenting Statement of Commissioner 

William E. Kovacic, at 1–2, available at http:// 

www.ftc.gov/os/caselist/0510094/ 

080122kovacic.pdf. 

By direction of the Commission, 

Commissioner Rosch and Commissioner 

Ohlhausen dissenting. 

Donald S. Clark, 

Secretary. 

Statement of Commissioner Maureen K. 

Ohlhausen 

I voted against accepting the proposed 

consent agreement in this matter 

because I strongly dissent from those 

portions of the consent that relate to 

alleged conduct by the respondent 

involving standard-essential patents, or 

SEPs.10 Even if all of the SEP-related 

allegations in the complaint were 

proved—including the allegation that 

the patents at issue are standardessential—I would not view such 

conduct as violating Section 5 of the 

FTC Act.11 Simply seeking injunctive 

relief on a patent subject to a fair, 

reasonable, and non-discriminatory 

(‘‘FRAND’’) license, without more,12

even if seeking such relief could be 

construed as a breach of a licensing 

commitment, should not be deemed 

either an unfair method of competition 

or an unfair act or practice under 

Section 5. The enforcement policy on 

the seeking of injunctive relief on 

FRAND-encumbered SEPs that the 

Commission has announced today 

suffers from several critical defects. 

First, this enforcement policy raises 

significant issues of jurisdictional and 

institutional conflict. It is simply not in 

the public interest to effectively oust 

other institutions, including the federal 

courts and the International Trade 

Commission (‘‘ITC’’) from the important 

and complex area of SEPs through the 

use of our Section 5 authority. By 

imposing Section 5 liability on a firm 

that seeks injunctive relief on its SEPs, 

the Commission is doing exactly that. 

The FTC is not, nor should it be, the 

only institution acting in the SEPs 

space. Moreover, it is unclear how the 

seeking of injunctive relief, in either the 

courts or the ITC, on a patent—even a 

FRAND-encumbered SEP—would not 

be considered protected petitioning of 

the government under the NoerrPennington doctrine.13 In fact, a court 

recently dismissed Sherman Act and 

state unfair competition claims 

grounded on the seeking of injunctive 

relief in the courts and the ITC on 

FRAND-encumbered SEPs, holding that 

such conduct was protected by Noerr.14

Second, this enforcement policy 

appears to lack regulatory humility. The 

policy implies that our judgment on the 

availability of injunctive relief on 

FRAND-encumbered SEPs is superior to 

that of these other institutions. I agree 

that the FTC is well positioned to offer 

its views and to advocate on the 

important issue of patent hold-up using 

its policy tools. For that reason, I 

supported the Commission’s June 2012 

filing with the ITC.15 However, as the 

Commission testified to Congress 

shortly after filing its statement with the 

ITC, ‘‘Federal district courts have the 

tools to address this issue [hold-up], by 

balancing equitable factors or awarding 

money damages, and the FTC believes 

that the ITC likewise has the authority 

under its public interest obligations to 

address this concern and limit the 

potential for hold-up.’’ 16 I see no reason 

why this unanimous statement no 

longer holds.17

Third, to the extent that the SEP 

allegations in the complaint aspire to 

the consent agreement reached in the 

Commission’s N-Data 18 matter, I would 

submit that that consent is an illadvised guidepost for this agency to use 

in its enforcement of Section 5 for 

several reasons. Most importantly, the 

N-Data consent fails to identify 

meaningful limiting principles that 

would govern the Commission’s use of 

its Section 5 authority.19 As former 

Chairman Majoras explained in her 

dissent, the N-Data consent was a 

material departure from the prior line of 

standard-setting organization (‘‘SSO’’) 

cases brought by the Commission, 

which were grounded in deceptive 

conduct in the standard-setting context 

that led to, or was likely to lead to, 

anticompetitive effects.20 ThenCommissioner Kovacic also dissented, 

objecting to, among other things, the 

majority’s assumption that a Section 5 

action would have no spillover effects 

in terms of follow-on private 

litigation.21

The SEP allegations and consent in 

the instant matter suffer from many of 

the same deficiencies as the N-Data 

consent. I simply do not see any 

meaningful limiting principles in the 

enforcement policy laid out in these 

cases. The Commission statement 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices 71599 

22The instant matter also raises concerns about 

the Commission imposing requirements on the 

respondent that go beyond those it agreed to as part 

of the SSO at issue here, which does not appear to 

ban the seeking of injunctions on SEPs included in 

its standards. See SAE International, Technical 

Standards Board Governance Policy § 1.14 (Nov. 

2008), available at http://www.sae.org/ 

standardsdev/tsb/tsbpolicy.pdf. Even more 

troublesome, it is an open question whether the 

patents at issue are even standard-essential. See, 

e.g., Complaint ¶ 16 (‘‘After the adoption of SAE 

J–2788, SPX Corporation sued certain competitors, 

including Bosch, for infringing patents that may be 

essential to the practice of SAE J–2788.’’). 

23See Ethyl, 729 F.2d 128; Official Airline 

Guides, Inc. v. FTC, 630 F.2d 920 (2d Cir. 1980); 

Boise Cascade Corp. v. FTC, 637 F.2d 573 (9th Cir. 

1980); Abbott Labs., 853 F. Supp. 526. 

24See William E. Kovacic & Marc Winerman, 

Competition Policy and the Application of Section 

5 of the Federal Trade Commission Act, 76 

Antitrust L.J. 929, 943 (2010) (‘‘In the 1950s and the 

1970s, Commission efforts to use Section 5 

litigation to reach beyond prevailing interpretations 

of Sections 1 and 2 of the Sherman Act elicited 

strong political backlash from the Congress.’’). 

emphasizes the context here (i.e. 

standard setting); however, it is not 

clear why the type of conduct that is 

targeted here (i.e. a breach of an 

allegedly implied contract term with no 

allegation of deception) would not be 

targeted by the Commission in any other 

context where the Commission believes 

consumer harm may result. If the 

Commission continues on the path 

begun in N-Data and extended here, we 

will be policing garden variety breachof-contract and other business disputes 

between private parties. Mere breaches 

of FRAND commitments, including 

potentially the seeking of injunctions if 

proscribed by SSO rules,22 are better 

addressed by the relevant SSOs or by 

the affected parties via contract and/or 

patent claims resolved by the courts or 

through arbitration. 

It is important that government strive 

for transparency and predictability. 

Before invoking Section 5 to address 

business conduct not already covered by 

the antitrust laws (other than perhaps 

invitations to collude), the Commission 

should fully articulate its views about 

what constitutes an unfair method of 

competition, including the general 

parameters of unfair conduct and where 

Section 5 overlaps and does not overlap 

with the antitrust laws, and how the 

Commission will exercise its 

enforcement discretion under Section 5. 

Otherwise, the Commission runs a 

serious risk of failure in the courts 23

and a possible hostile legislative 

reaction,24 both of which have 

accompanied previous FTC attempts to 

use Section 5 more expansively. 

This consent does nothing either to 

legitimize the creative, yet questionable 

application of Section 5 to these types 

of cases or to provide guidance to 

standard-setting participants or the 

business community at large as to what 

does and does not constitute a Section 

5 violation. Rather, it raises more 

questions about what limits the majority 

of the Commission would place on its 

expansive use of Section 5 authority. 

[FR Doc. 2012–29031 Filed 11–30–12; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

[Document Identifiers: CMS–10143 and 

CMS–R–284] 

Agency Information Collection 

Activities: Submission for OMB 

Review; Comment Request 

AGENCY: Centers for Medicare & 

Medicaid Services, HHS. 

In compliance with the requirement 

of section 3506(c)(2)(A) of the 

Paperwork Reduction Act of 1995, the 

Centers for Medicare & Medicaid 

Services (CMS), Department of Health 

and Human Services, is publishing the 

following summary of proposed 

collections for public comment. 

Interested persons are invited to send 

comments regarding this burden 

estimate or any other aspect of this 

collection of information, including any 

of the following subjects: (1) The 

necessity and utility of the proposed 

information collection for the proper 

performance of the Agency’s function; 

(2) the accuracy of the estimated 

burden; (3) ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and (4) the use of 

automated collection techniques or 

other forms of information technology to 

minimize the information collection 

burden. 

1. Type of Information Collection 

Request: Reinstatement without change 

of a previously approved collection. 

Title of Information Collection: Monthly 

State File of Medicaid/Medicare Dual 

Eligible Enrollees. Use: The monthly 

data file is provided to CMS by states on 

dually eligible Medicaid and Medicare 

beneficiaries, listing the individuals on 

the Medicaid eligibility file, their 

Medicare status and other information 

needed to establish subsidy level, such 

as income and institutional status. The 

file will be used to count the exact 

number of individuals who should be 

included in the phased-down state 

contribution calculation that month. 

CMS will be able to merge the data with 

other data files and establish Part D 

enrollment for those individuals on the 

file. The file may be used by CMS 

partners to obtain accurate counts of 

duals on a current basis. Form Number: 

CMS–10143 (OCN 0938–0958). 

Frequency: Monthly. Affected Public: 

State, Local, or Tribal Governments. 

Number of Respondents: 51. Total 

Annual Responses: 612. Total Annual 

Hours: 6,120. (For policy questions 

regarding this collection contact Goldy 

Austen at 410–786–6450. For all other 

issues call 410–786–1326.) 

2. Type of Information Collection 

Request: Revision of a currently 

approved collection. Title of 

Information Collection: Medicaid 

Statistical Information System (MSIS). 

Use: CMS requests OMB approval of the 

Medicaid Statistical Information System 

(MSIS, IBC Form R–284) and allow 

additional data collection of MSIS data 

for what CMS now refers to as the 

Transformed Medicaid Statistical 

Information System (T–MSIS) data 

collection. This approval would enable 

states to continue to fulfill their 

Medicaid data reporting requirements in 

parallel from 2013 through 2016 and 

reduce the burden on states by: 

eliminating multiple disparate requests 

for data, allowing states to have one 

consolidated reporting requirement, and 

to better perform its responsibilities of 

Medicaid and CHIP program oversight, 

administration, and program integrity. 

Subsequent to the publication of the 

60-day Federal Register notice (August 

15, 2012; 77 FR 48987), T–MSIS has 

been added to the corresponding PRA 

package to offer CMS and state partners 

robust, up-to-date, and current 

information to be able to: 

• View how each state and the 

district implements their programs. 

• Compare the delivery of programs 

across authorities/states. 

• Assess the impact of service options 

on beneficiary outcomes and 

expenditures. 

• Examine the enrollment, service 

provision, and expenditure experience 

of providers who participate in our 

programs (as well as in Medicare). 

• Examine beneficiary activity such 

as application and enrollment history, 

services received, appropriateness of 

services received based on enrollment 

status and applicable statutory 

authority. 

• Use informatics to improve program 

oversight and inform future policy and 

operational decisions. 

• Answer key Medicaid and CHIP 

program questions. 

Importantly, there is no duplication of 

effort or information associated with 

this request. MSIS provides complete 

Medicaid and CHIP program statistics 

on a national scale and there is no other 


emcdonald on DSK67QTVN1PROD with NOTICES