32824 Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices

1The unnecessary provisions relating to price

advertising appear in Paragraphs II(A), II(B), and III

and in Exhibit A to the proposed order.

2See Paragraph IV(C) of the proposed complaint

and Paragraph II(D) of the proposed order.

3See United States v. Colgate & Co., 250 U.S. 300

(1919).

a detailed report of the manner and form

of its compliance with the order within

sixty days of its becoming final and at

such other times as the Commission

may request.

The proposed order provides that the

order shall terminate 20 years after the

date of its issuance by the Commission.

The purpose of this analysis is to

facilitate public comment on the

proposed order, and it is not intended

to constitute an official interpretation of

the agreement and proposed order to

modify in any way their terms.

Donald S. Clark,

Secretary.

Concurring Statement of Commissioner

Mary L. Azcuenaga in New Balance

Athletic Shoe, Inc., File No. 921–0050

There is some evidence that New

Balance went beyond permissible

communications with its dealers and

entered the realm of unlawful resale

price maintenance. An order is,

therefore, appropriate. I write separately

to make clear my understanding that the

proposed complaint does not challenge

the announcement or implementation

by a supplier of a structured termination

policy. although I view Paragraph 4(c) of

the complaint as ambiguous, the essence

of the charge is that New Balance would

not impose sanctions on them. New

Balance did not implement its

structured termination policy, and the

proposed complaint and order do not

address the lawfulness of that policy.

Dissenting Statement of Commissioner

Roscoe B. Starek, III In the Matter of

New Balance Athletic Shoe, Inc., File

No. 921–0050

As I did in Reebok International, Ltd.,

Docket No. C–3592, I find reasons to

believe that the target of the present

investigation—New Balance Athletic

Shoe, Inc. (‘‘New Balance’’)—has

entered into agreements with retailers to

restrain retail prices and has thereby

violated Section 5 of the Federal Trade

Commission Act, 15 U.S.C. 45.

However, I dissent from the

Commission’s decision to accept the

consent agreement in this matter

because certain provisions of the

proposed Commission order are not

required to prevent unlawful conduct

and may instead unnecessarily restrain

procompetitive conduct by New

Balance.

As in Reebok International, the

fencing-in restrictions in the proposed

order relating to resale price advertising

(specifically, the minimum advertised

price provisions) 1 and to New Balance’s

‘‘structured termination policy.’’ 2 are

unjustifiably broad and likely to deter

efficient conduct. Indeed, the order even

goes beyond the provisions I found over

inclusive, and therefore unacceptable,

in the Reebok order: the current order

omits language that appeared in

Paragraph II of the Reebok order that

expressly recognized the respondent’s

Colgate rights.3

In the interests of fairness and

efficiency, injunctive relief ordered to

address resale price maintenance should

be strictly tailored to the per se

unlawful conduct alleged. Because the

proposed order in this case mandates

excessive restrictions upon the conduct

of New Balance, I respectfully dissent.

[FR Doc. 96–16113 Filed 6–24–96; 8:45 am]

BILLING CODE 6750–01–M

[File No. 951–0124]

Precision Moulding Company, Inc.;

Proposed Consent Agreement With

Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent agreement, accepted subject to

final Commission approval, would

prohibit, among other things, the

Cottonwood, California-based company

from requesting, suggesting, urging, or

advocating that any competitor raise,

fix, or stabilize price levels. This

consent agreement settles allegations

that Precision, the leading supplier of

wood products used to construct frames

for artists’ canvases, attempted to fix

prices and restrain trade in the market

for these products, known as stretcher

bars.

DATES: Comments must be received on

or before August 26, 1996.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,

Room 159, 6th St. and Pa. Ave., N.W.,

Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Michael Antalics, Federal Trade

Commission, S–2627, 6th and

Pennsylvania Ave, NW, Washington, DC

20580. (202) 326–2821.

SUPPLEMENTARY INFORMATION: Pursuant

to Section 6(f) of the Federal Trade

Commission Act, 38 Stat. 721, 15 U.S.C.

46 and Section 2.34 of the Commission’s

Rules of Practice (16 CFR 2.34), notice

is hereby given that the following

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 sixty (60) days. Public comment is

invited. Such comments or views will

be considered by the Commission and

will be available for inspection and

copying at its principal office in

accordance with Section 4.9(b)(6)(ii) of

the Commission’s Rules of Practice (16

CFR 4.9(b)(6)(ii)).

Agreement Containing Consent Order

To Cease and Desist

The Federal Trade Commission

(‘‘Commission’’), having initiated an

investigation of certain acts and

practices of Precision Moulding Co.,

Inc., a corporation, hereinafter

sometimes referred to as ‘‘proposed

respondent,’’ and it now appearing that

Precision Moulding Co., Inc. is willing

to enter into an agreement containing an

order to cease and desist from the use

of the acts and practices being

investigated.

It is hereby agreed by and between

Precision Moulding Co. Inc., by its duly

authorized officer, and its attorney, and

counsel for the Commission that:

1. Proposed respondent Precision

Moulding Co., Inc., is a corporation

organized, existing and doing business

under and by virtue of the laws of the

State of California with its principal

place of business located at 3308

Cyclone Court, Cottonwood, California

96022, and its mailing address at P.O.

Box 406, Cottonwood, California 96022.

2. Proposed respondent admits all the

jurisdictional facts set forth in the draft

of complaint.

3. Proposed respondent waives:

(a) Any further procedural steps;

(b) The requirement that the

Commission’s decision contain a

statement of findings of fact and

conclusions of law;

(c) All rights to seek judicial review

or otherwise to challenge or contest the

validity of the order entered pursuant to

this agreement; and

(d) Any claim under the Equal Access

to Justice Act.

4. This agreement shall not become

part of the public record of the

proceeding unless and until it is

accepted by the Commission. If this

agreement is accepted by the

Commission it, together with the draft of

complaint contemplated thereby, will be
Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices 32825

1A stretcher bar is an art supply wood product

which when assembled comprises a rectangular

frame over which a canvas used for painting is

stretched.

placed on the public record for a period

of sixty (60) days and information in

respect thereto publicly released. The

Commission thereafter may either

withdraw its acceptance of this

agreement and so notify the proposed

respondent, in which event it will take

such action as it may consider

appropriate, or issue and serve its

complaint (in such form as the

circumstances may require) and

decision, in disposition of the

proceeding.

5. This agreement is for settlement

purposes only and does not constitute

an admission by proposed respondent

that the law has been violated as alleged

in the draft of complaint, or that the

facts as alleged in the complaint, other

than jurisdictional facts, are true.

6. This agreement contemplates that,

if it is accepted by the Commission, and

if such acceptance is not subsequently

withdrawn by the Commission pursuant

to the provisions of § 2.34 of the

Commission’s Rules, the Commission

may, without further notice to proposed

respondent, (1) issue its complaint

corresponding in form and substance

with the draft of complaint and its

decision containing the following order

to cease and desist in disposition of the

proceeding and (2) make information

public in respect thereto. When so

entered, the order to cease and desist

shall have the same force and effect and

may be altered, modified or set aside in

the same manner and within the same

time provided by statute for other

orders. The order shall become final

upon service. Delivery by the U.S.

Postal Service of the complaint and

decision containing the agreed-to order

to proposed respondent’s address as

stated in this agreement shall constitute

service. Proposed respondent waives

any right it may have to any other

manner of service. The complaint may

be used in construing the terms of the

order, and no agreement, understanding,

representation, or interpretation not

contained in the order or the agreement

may be used to vary or contradict the

terms of the order.

7. Proposed respondent has read the

proposed complaint and order

contemplated hereby. Proposed

respondent understands that once the

order has been issued, it will be

required to file one or more compliance

reports showing that it has fully

complied with the order. Proposed

respondent further understands that it

may be liable for civil penalties in the

amount provided by law for each

violation of the order after it becomes

final.

Order

I

For purposes of this order, the

following definitions shall apply:

A. ‘‘Respondent’’ means Precision

Moulding Co., Inc., its directors,

officers, employees, agents and

representatives, predecessors,

successors and assigns; its subsidiaries,

divisions, and groups, and affiliates

controlled by Precision Moulding Co.,

Inc., and the respective directors,

officers, employees, agents and

representatives, successors, and assigns

of each.

B. ‘‘Stretcher bar products’’ means an

art supply wood product which when

assembled comprises a rectangular

frame over which a canvas used for

painting is stretched, and includes any

size of stretcher bar.

II

It is ordered that respondent, directly

or indirectly, through any corporation,

subsidiary, division or other device, in

connection with the manufacture,

advertising, offering for sale, sale or

distribution of any stretcher bar

products, in or affecting commerce, as

‘‘commerce’’ is defined in the Federal

Trade Commission Act, forthwith cease

and desist from:

A. Requesting, suggesting, urging, or

advocating that any competitor raise, fix

or stabilize prices or price levels, or

engage in any other pricing action; and

B. Entering into, attempting to enter

into, adhering to, or maintaining any

combination, conspiracy, agreement,

understanding, plan or program with

any competitor to fix, raise, establish,

maintain or stabilize prices or price

levels.

Provided, that nothing in this order

shall prohibit respondent from: (1)

agreeing to sell or distribute its stretcher

bar products to its competitors, and (2)

negotiating or agreeing upon the price

which any of its stretcher bar products

will be sold to its competitors.

It is further ordered That respondent

shall:

A. Within thirty (30) days of the date

on which this order becomes final,

provide a copy of this order to all of its

directors, officers, and management

employees;

B. For a period of three (3) years after

the date on which this order becomes

final, and within ten (10) days after the

date on which any person becomes a

director, officer, or management

employee of respondent, provide a copy

of this order to such person; and

C. Require each person to whom a

copy of this order is furnished pursuant

to subparagraphs III.A. and B. of this

order to sign and submit to Precision

Moulding Co., Inc. within thirty (30)

days of the receipt thereof a statement

that: (1) acknowledges receipt of the

order; (2) represents that the

undersigned has read and understands

the order; and (3) acknowledges that the

undersigned has been advised and

understands that non-compliance with

the order may subject Precision

Moulding Co., Inc. to penalties for

violation of the order.

IV

It is further ordered That respondent

shall:

A. Within sixty (60) days from the

date on which this order becomes final,

and annually thereafter for three (3)

years on the anniversary date of this

order, and at such other times as the

Commission may be written notice to

the respondent require, file with the

Commission a verified written report

setting forth in detail the manner and

form in which respondent has complied

and is complying with this order;

B. For a period of three (3) years after

the order becomes final, maintain and

make available to the staff of the Federal

Trade Commission for inspection and

copying, upon reasonable notice, all

records of communications with

competitors of respondent relating to

any aspect of pricing for stretcher bar

products, and records pertaining to any

action taken in connection with any

activity covered by parts II, III and IV,

of this order; and

C. Notify the Commission at least

thirty (30) days prior to any change in

respondent such as dissolution,

assignment or sale resulting in the

emergence of a successor corporation,

the creation or dissolution of

subsidiaries, or any other change in the

corporation that may affect compliance

obligations arising out of this order.

V

It is further ordered That this order

shall terminate on , 2016.

Analysis of Proposed Consent Order To

Aid Public Comment

The Federal Trade Commission has

accepted an agreement to a proposed

consent order from Precision Moulding

Company, Inc., a manufacturer of

stretcher bars 1 with its principal place

of business located at 3308 Cyclone

Court, Cottonwood, California.

The proposed consent order has been

placed on the public record for 60 days

for reception of comments by interested
32826 Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices

2See 18 U.S.C.A. §§ 1341, 1343 (mail and wire

fraud).

3See Fashion Originators’ Guild v. FTC, 312 U.S.

457, 466 (1941); FTC v. Brown Shoe Co., 384 U.S.

316, 321 (1966) (Commission could ‘‘ban trade

practices which conflict with the basic policies of

the Sherman and Clayton Acts even though such

practices may not actually violate those laws’’); FTC

v. Cement Institute, 333 U.S. 683, 708 (1948)

(Commission was intended to ‘‘restrain practices as

‘unfair’ which, although not yet having grown into

Sherman Act dimensions would most likely do so

if left unrestrained’’).

persons. Comments received during this

period will become part of the public

record. After 60 days, the Commission

will again review the agreement and the

comments received and will decide

whether it should withdraw from the

agreement or make final the agreement’s

proposed order.

The complaint alleges that two

representatives of Precision Moulding

Co., Inc. visited one of its competitors

and invited the competitor to raise its

prices for stretcher bars. The complaint

alleges that the invitation to collude, if

accepted, would constitute an

agreement in restraint of trade.

Solicitations to collude have been

condemned as unlawful under Section 2

of the Sherman Act (attempted

monopolization), under the wire and

mail fraud statutes,2 and under Section

5 of the FTC Act. In this case, the

structure of the stretcher market is not

conducive to prosecution under Section

2 of the Sherman Act. Market structure

does not affect whether an alleged

solicitation to collude can be prosecuted

under the wire fraud or mail fraud

statutes. However, those statutes do not

apply in this case, because there is no

evidence that Precision Moulding

Company, Inc. used either the telephone

(or another form of wire

communication) or the mail to invite its

competitor to collude. Thus, if not

prosecuted under Section 5 of the FTC

Act, the conduct would go unpunished.

Solicitations to collude have been

alleged to be unfair methods of

competition that violate Section 5 of the

FTC Act, which reaches anticompetitive

activities that may not violate the

Sherman Act.3 During the past several

years, the Commission has entered into

several consent agreements involving

invitations to collude that could not be

reached under the wire and mail fraud

statutes. See YKK, C–3345 (1993);

Quality Trailer Products, C–3403 (1992)

(‘‘Quality’’); A.E. Clevite, Inc., C–3429

(1993). The Commission has

condemned invitations to collude where

the evidence is unambiguous, regardless

of market power. Section 5 provides an

appropriate vehicle for relief where the

conduct falls short of criminal liability.

The alleged conduct engaged in by

Precision Moulding Co., Inc. and the

terms of the proposed consent order are

similar to the conduct alleged and the

relief obtained in Quality Trailer

Products, C–3403 (1992). In Quality,

according to the Commission complaint,

two representatives of a firm visited the

headquarters of a competitor and met

with an officer of the firm. During the

course of the meeting, they invited the

competitor to fix prices. As in Quality,

the visit here was uninvited, and the

solicitor informed its competitor in a

private conservation that its prices were

too low. See Quality (Concurring

Statement of Commissioner Azcuenaga)

(Nov. 5, 1992).

The proposed consent order prohibits

Precision Moulding Co., Inc. from

requesting, suggesting, urging, or

advocating that any other producer or

seller of stretcher bars raise, fix or

stabilize prices or price levels, or engage

in any other pricing action. The

proposed consent order also prohibits

Precision Moulding Co., Inc. from

entering into, adhering to, maintaining,

or carrying out any combination,

conspiracy, agreement, understanding,

plan or program with any other

producer or seller of stretcher bars to

fix, raise, establish, control, maintain or

stabilize prices or price levels. The

provisions of the order apply to

stretcher bar products of any size.

The purpose of this analysis is to

facilitate public comment on the

proposed order, and it is not intended

to constitute an official interpretation of

the agreement and proposed order or to

modify in any way their terms.

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 96–16114 Filed 6–24–96; 8:45 am]

BILLING CODE 6750–01–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Office of the Secretary

Findings of Scientific Misconduct

AGENCY: Office of the Secretary, HHS.

ACTION: Notice.

SUMMARY: Notice is hereby given that

the Office of Research Integrity (ORI)

has made final findings of scientific

misconduct in the following case:

Robert J. Altman, M.D., University of

California at San Francisco (UCSF):

Based on an investigation conducted by

the institution as well as information

obtained by ORI during its oversight

review, ORI found that Robert J. Altman,

M.D., Research Fellow, Department of

Obstetrics, Gynecology, and

Reproductive Sciences, UCSF,

committed scientific misconduct by

fabricating and falsifying data in

research supported by two National

Institutes of Health grants.

Specifically, Dr. Altman fabricated an

experiment related to an ovarian cell

line injected intraperitoneally into 12

nude mice. The resulting data were

reported in (1) a manuscript in page

proof entitled ‘‘Inhibiting vascular

endothelial growth factor arrests growth

of ovarian cancer in an intraperitoneal

model’’ (Journal of the National Cancer

Institute); (2) a manuscript entitled

‘‘Vascular endothelial growth factor is

essential for human ovarian carcinoma

growth in vivo,’’ submitted to the

Journal of Clinical Investigation (JCI

manuscript); and (3) a published

abstract entitled ‘‘Vascular endothelial

growth factor is essential for ovarian

cancer growth in vivo’’ (Society for

Gynecologic Investigation, abstract

#079). Further, in the JCI manuscript,

Dr. Altman (1) falsified the number of

subjects with ovarian tumors from

whom he obtained sections of tissue for

examination of the expression of

vascular endothelial growth factor

(VEGF) purportedly by both in situ

hybridization and

immunohistochemistry, and (2) falsely

reported that VEGF expression was

examined by in situ hybridization and

immunohistochemistry in papillary

serous- (n=7) and mucinous- (n=5)

cystadenocarcinomas, when the number

of surgical cases involving papillary

serous tumors was four and the number

of mucinous tumors was zero. Dr.

Altman examined VEGF expression in

only three papillary serous tumor

specimens, one specimen both ιin situ

and by immunohistochemistry and the

remaining two solely by

immunohistochemistry.

Dr. Altman has entered into a

Voluntary Exclusion Agreement with

ORI in which he has voluntarily agreed,

for the three (3) year period beginning

June 11, 1996, to exclude himself from:

(1) Any contracting or subcontracting

with any agency of the United States

Government and from eligibility for, or

involvement in, nonprocurement

transactions (e.g., grants and cooperative

agreements) of the United States

Government as defined in 45 C.F.R. Part

76 (Debarment Regulations), and (2)

Serving in any advisory capacity to the

Public Health Service (PHS), including

but not limited to service on any PHS

advisory committee, board, and/or peer

review committee, or as a consultant.

The above voluntary exclusion shall

not apply to Dr. Altman’s future training