2164 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Notices

consisting of ‘‘branded RTE cereal.’’ Indeed, the

provisions of the proposed order (which affect the

disposition of assets used in the production of

nonbranded cereals) make sense only in the context

of an ‘‘all RTE cereal’’ product market.

2See U.S. Department of Justice and Federal

Trade Commission, Horizontal Merger Guidelines

§ 2.211, 4 Trade Reg. Rep. (CCH) ¶ 13,104, at 20573–

9.

3State of New York v. Kraft General Foods, Inc.,

1995–1 Trade Cas. (CCH) ¶ 70,911, at 74,039, 74,066

(S.D.N.Y. 1995).

4See also Business Elecs. Corp. v. Sharp Elecs.

Corp., 485 U.S. 717, 729 n.3 (‘‘The classic ‘ancillary’

restraint is an agreement by the seller of a business

not to compete within the market.’’).

5See Paragraph VI of the proposed order in CibaGeigy.

6Barring enforcement of the non-compete

agreement might undermine adherence by the

parties to the supply agreement, an element of the

acquisition agreement found acceptable by the

majority.

immediately assume Ralcorp’s position

as the largest private label cereal

producer in the United States.

Moreover, General Mills’ post-merger

share of the RTE cereal market will be

between 25 and 31 percent (depending

on whether share is measured in pounds

or sales dollars), well below levels

suggested by the Horizontal Merger

Guidelines as the minimum threshold at

which the Commission might

reasonably presume market power.2 It is

hard to understand under these simple

facts how the majority determined that

the proposed acquisition will enable

General Mills unilaterally to exercise

market power.

Unable to presume market power, the

Commission instead relies upon a

‘‘close substitutes’’ theory of unilateral

harm, notwithstanding a paucity of

empirical evidence demonstrating that

Ralcorp’s branded Chex products are the

closest substitutes to the branded

cereals of General Mills. Although Chex

products clearly compete with the

branded General Mills RTE cereal

products, consumers have a preference

for variety when they choose RTE

cereals and frequently choose among the

many branded and private label cereals

produced by RTE cereal manufacturers

in the United States. Not surprisingly,

Judge Wood reached this conclusion in

her opinion explaining why she refused

to block the acquisition of the Nabisco

RTE cereal assets by Kraft General

Foods in early 1993.3 In Kraft General

Foods, an empirical analysis of cereal

purchasing patterns suggested—as it

does in the present matter—that

consumers have many attractive

alternatives from which to choose in the

event that one RTE cereal producer tries

to raise prices above competitive levels.

Overall, the empirical evidence does not

support the Commission’s claim, under

either a ‘‘close substitutes’’ or a

dominant firm theory, that General

Mills would be able unilaterally to raise

the prices of its branded RTE cereals

after the acquisition.

Even if I agreed with the majority that

this consent agreement rests upon an

empirically sound theory of competitive

harm, the proposed order would bar

General Mills from enforcing an

arguably procompetitive non-compete

agreement that is properly limited in

scope and duration. Covenants not to

compete are often included in contracts

for the sale of a business, and generally

are enforceable when ancillary to an

enforceable agreement and reasonable in

geographic coverage, scope of activity,

and duration. Lektro-Vend Corp. v.

Vendo Co., 660 F.2d 255, 265 (7th Cir.

1981) (‘‘The recognized benefits of

reasonably enforced non-competition

covenants are now beyond question.’’),

cert. denied, 455 U.S. 921 (1982); United

States v. Addyston Pipe & Steel Co., 85

F. 271, 281–82 (6th Cir. 1898), aff’d as

modified, 175 U.S. 211 (1899).4 Judicial

inquiry into non-compete provisions

generally focuses on whether the

restriction is reasonably necessary to

protect the legitimate business interests

of the party seeking to enforce the

provision. United States v. Empire Gas

Corp., 537 F.2d 296, 307 (8th Cir. 1976),

cert. denied, 429 U.S. 1122 (1977);

Sound Ship Bldg. Corp. v. Bethlehem

Steel Corp., 387 F. Supp. 252, 255

(D.N.J. 1975), aff’d, 533 F.2d 96 (3d

Cir.), cert. denied, 429 U.S. 680 (1976).

The Commission has often recognized

that competitive benefits can flow from

a non-compete clause in the context of

the sale of a business. The

Commission’s recent acceptance for

public comment of a consent agreement

in Ciba-Geigy, Ltd., et al., File No. 961

0055 (consent agreement accepted for

public comment, Dec. 16, 1996), is

illustrative. In Ciba-Geigy, the

Commission imposed an affirmative

obligation on the newly merged entity,

Novartis AG, not to compete in the

United States and Canada for six years

in the sale of animal flea control

products.5 As the Ciba-Geigy order

indicates, the Commission clearly

recognizes that non-compete clauses—

even when long in duration and broad

in scope—can serve legitimate

procompetitive purposes in some

circumstances by allowing an acquiring

entity a brief period to re-deploy the

acquired assets in a manner that

increases competition in the

marketplace. I am therefore puzzled

why the Commission so hastily

condemns a non-compete provision

here that is only eighteen months in

duration, limited to the manufacture

and sale of private label Chex products,

and arguably necessary to protect the

legitimate interests of the contracting

parties.6

Because I find that the facts do not

support the Commission’s theory of

unilateral competitive harm in this

instance, and because in any event I

disagree with the Commission’s

decision to bar enforcement of the noncompete provision contained in the

parties’ acquisition agreement, I have

voted to reject the consent agreement.

[FR Doc. 97–921 Filed 1–14–97; 8:45 am]

BILLING CODE 6750–01–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Centers for Disease Control and

Prevention

NIOSH Meeting; The National Institute

for Occupational Safety and Health

(NIOSH) of the Centers for Disease

Control and Prevention (CDC)

Announces the Following Meeting

Name: ‘‘Correlation of Seven Quantitative

Fit Test Methods to an Actual Measurement

of Exposure Using Negative-Pressure Full

Facepiece Respirators,’’ and ‘‘Development

and Correlation of a New Quantitative Fit

Test Method for Health-Care Industry

Respirators’’ study protocol peer review.

Time and Date: 9 a.m.–3 p.m., February 4,

1997.

Place: NIOSH, CDC, Room L–1047A, 1095

Willowdale Road, Morgantown, West

Virginia 26505.

Status: Open to the public, limited only by

the space available. The meeting room

accommodates approximately 20 people.

Purpose: Participants will provide NIOSH

with their individual advice and comments

regarding technical and scientific aspects of

the protocols for two NIOSH studies. The

first study is entitled ‘‘Correlation of Seven

Quantitative Fit Test Methods to an Actual

Measurement of Exposure Using NegativePressure Full Facepiece Respirators.’’ The

second study is entitled ‘‘Development and

Correlation of a New Quantitative Fit Test

Method for Health-Care Industry

Respirators.’’ Peer review panelists will

review the study protocols and provide

individual advice on the conduct of the

studies. Individual viewpoints and

suggestions from industry, labor, academia,

other governmental agencies, and the public

are invited.

Agenda items are subject to change, as

priorities dictate.

Contact Person for Additional Information:

Christopher C. Coffey, M/S 1138, NIOSH,

CDC, 1095 Willowdale Road, Morgantown,

West Virginia 26505, telephone (304) 285–

5958, fax (304) 285–6047.
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Notices 2165

Dated: January 8, 1997.

Carolyn J. Russell,

Director, Management Analysis and Services

Office, Centers of Disease Control and

Prevention (CDC).

[FR Doc. 97–965 Filed 1–14–97; 8:45 am]

BILLING CODE 4160–19–P

NIOSH Meeting; The National Institute

for Occupational Safety and Health

(NIOSH) of the Centers for Disease

Control and Prevention (CDC)

Announces the Following Meeting

Name: ‘‘Postural Stability and Motor

Response Times During Scaffold End Frame

Handling’’ study protocol peer review.

Time and Date: 1–4 P.M., February 13,

1997.

Location: Suncrest Facility, Large

Conference Room, NIOSH, CDC, 3040

University Avenue, Morgantown, West

Virginia 26505.

Status: Open to the public, limited only by

the space available. The meeting room

accommodates approximately 50 people.

Purpose: Participants will provide NIOSH

with their individual advice and comments

regarding technical and scientific aspects of

the NIOSH protocol ‘‘Postural Stability and

Motor Response Times During Scaffold End

Frame Handling.’’ Peer review panelists will

review the study protocol and provide

individual advice on the conduct of the

study. Viewpoints and suggestions from

industry, labor, academia, other

governmental agencies, and the public are

invited.

Agenda items are subject to change, as

priorities dictate.

For Further Information Contact: Brian E.

Moyer, M/S 119, 1095 Willowdale Road,

Morgantown, West Virginia 26505, telephone

(304) 285–5969.

Dated: January 8, 1997.

Carolyn J. Russell,

Director, Management Analysis and Services

Office, Centers for Disease Control and

Prevention (CDC).

[FR Doc. 97–964 Filed 1–14–97; 8:45 am]

BILLING CODE 4160–19–P

Administration for Children and

Families

Proposed Information Collection

Activity; Comment Request

Proposed Projects:

Title: Child Care Quarterly Unit

Report

OMB No.: New collection

Description: This legislativelymandated report collects program and

participants data on children and

families receiving direct CCDF services.

Disaggregate data will be collected and

will be used to determine the

participants and program characteristics

as well as cost and level of child care

services. The data will be used to

provide a report to Congress. Form ACF

801 represents the data elements to be

collected and reported to ACF.

Respondents (States and Territories)

will be asked to sample the population

of families receiving benefits on a

monthly basis and submit the three

most current monthly samples to ACF

quarterly. Each monthly sample is

drawn independent of the other samples

and retained for submission within a

quarterly report. ACF is not issuing

specifications on how respondents

compile overall database(s) from which

samples are drawn. ACF will provide to

the respondents a sampling plan which

will specify minimum sample size. It is

expected to be a monthly sample of

approximately 150 cases for large States

with smaller samples based on

population size adjustments for smaller

respondents.

Respondents: States, D.C., Guam,

Virgin Islands and Puerto Rico

ANNUAL BURDEN ESTIMATES

Instrument Number of respondents

Number of responses per

respondent

Average burden hours per

response

Total burden

hours

ACF–801 ........................................................................................................... 54 4 20 4,320

Estimated Total Annual Burden Hours:

4,320.

In compliance with the requirements

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

Paperwork Reduction Act of 1995, the

Administration for children and

Families is soliciting public comment

on the specific aspects of the

information collection described above.

Copies of the proposed collection of

information can be obtained and

comments may be forwarded by writing

to the Administration for Children and

Families, Office of Information Services,

Division of Information Resource

Management Services, 370 L’Enfant

Promenade, SW., Washington, DC

20447, Attn: ACF Reports Clearance

Officer. All requests should be

identified by the title of the information

collection.

The Department specifically requests

comments on: (a) Whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information shall have

practical utility; (b) the accuracy of the

agency’s estimate of the burden of the

proposed collection of information; (c)

the quality, utility, and clarity of the

information to be collected; and (d)

ways to minimize the burden of the

collection of information on

respondents, including through the use

of automated collection techniques or

other forms of information technology.

Consideration will be given to

comments and suggestions submitted

within 60 days of this publication.

Dated: January 9, 1997.

Douglas J. Godesky,

Reports Clearance Officer.

[FR Doc. 97–940 Filed 1–14–97; 8:45 am]

BILLING CODE 4184–01–M

Food and Drug Administration

[Docket No. 96N–0488]

Use of Clorsulon Drench in Goats;

Availability of Data

AGENCY: Food and Drug Administration,

HHS.

ACTION: Notice.

SUMMARY: The Food and Drug

Administration (FDA) is announcing the

availability of target animal safety and

effectiveness data, human food safety

data, and environmental data to be used

in support of a new animal drug

application (NADA) or supplemental

NADA for use of a suspension

containing 8.5 percent clorsulon as a

drench in goats for the treatment of

adult liver fluke infestation. The data,

contained in Public Master File (PMF)

5440, were compiled under National

Research Support Project No. 7 (NRSP–

7), a national agricultural program for

obtaining clearances for use of new

drugs in minor animal species or in any

animal species for the control of

diseases that occur infrequently or in

limited geographical areas.

ADDRESSES: Submit NADA’s or

supplemental NADA’s to the Document

Control Unit (HFV–199), Center for

Veterinary Medicine, Food and Drug

Administration, 7500 Standish Pl.,

Rockville, MD 20855.