56538 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Notices 

1The comment must be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See FTC 

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

Total annual capital or other nonlabor costs: De minimis. 

The vast majority of retailers and 

warrantors already have developed 

systems to provide the information the 

Rule requires. Compliance by retailers 

typically entails keeping warranties on 

file, in binders or otherwise, and posting 

an inexpensive sign indicating warranty 

availability. Manufacturer compliance 

entails providing retailers with a copy of 

the warranties included with their 

products. 

David C. Shonka, 

Acting General Counsel. 

[FR Doc. 2010–23171 Filed 9–15–10; 8:45 am] 

BILLING CODE 6750–01–S 

FEDERAL TRADE COMMISSION 

[File No. 101 0093] 

Air Products and Chemicals, Inc.; 

Analysis of Proposed 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 October 12, 2010. 

ADDRESSES: Interested parties are 

invited to submit written comments 

electronically or in paper form. 

Comments should refer to‘‘Air Products, 

Inc., File No. 101 0093’’ to facilitate the 

organization of comments. Please note 

that your comment — including your 

name and your state — will be placed 

on the public record of this proceeding, 

including on the publicly accessible 

FTC website, at (http://www.ftc.gov/os/ 

publiccomments.shtm). 

Because comments will be made 

public, they should not include any 

sensitive personal information, such as 

an individual’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. Comments 

also should not include any sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, comments should not include 

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

financial information which is obtained 

from any person and which is privileged 

or confidential. . . .,’’ as provided in 

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

46(f), and Commission Rule 4.10(a)(2), 

16 CFR 4.10(a)(2). Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

FTC Rule 4.9(c), 16 CFR 4.9(c).1

Because paper mail addressed to the 

FTC is subject to delay due to 

heightened security screening, please 

consider submitting your comments in 

electronic form. Comments filed in 

electronic form should be submitted by 

using the following weblink: (https:// 

ftcpublic.commentworks.com/ftc/ 

airproducts) and following the 

instructions on the web-based form. To 

ensure that the Commission considers 

an electronic comment, you must file it 

on the web-based form at the weblink: 

(https://ftcpublic.commentworks.com/ 

ftc/airproducts). If this Notice appears at 

(http://www.regulations.gov/search/ 

index.jsp), you may also file an 

electronic comment through that 

website. The Commission will consider 

all comments that regulations.gov 

forwards to it. You may also visit the 

FTC website at (http://www.ftc.gov/) to 

read the Notice and the news release 

describing it. 

A comment filed in paper form 

should include the ‘‘Air Products, Inc., 

File No. 101 0093’’ reference both in the 

text and on the envelope, and should be 

mailed or delivered to the following 

address: Federal Trade Commission, 

Office of the Secretary, Room H-135 

(Annex D), 600 Pennsylvania Avenue, 

NW, Washington, DC 20580. The FTC is 

requesting that any comment filed in 

paper form be sent by courier or 

overnight service, if possible, because 

U.S. postal mail in the Washington area 

and at the Commission is subject to 

delay due to heightened security 

precautions. 

The Federal Trade Commission Act 

(‘‘FTC Act’’) and other laws 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, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm). As a matter of 

discretion, the Commission makes every 

effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

policy, at (http://www.ftc.gov/ftc/ 

privacy.shtm). 

FOR FURTHER INFORMATION CONTACT: 

Gregory P. Luib (202-326-3249), Bureau 

of Competition, 600 Pennsylvania 

Avenue, NW, Washington, D.C. 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

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

46(f), and § 2.34 the Commission Rules 

of Practice, 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 September 9, 2010), 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, D.C. 20580, either in 

person or by calling (202) 326-2222. 

Public comments are invited, and may 

be filed with the Commission in either 

paper or electronic form. All comments 

should be filed as prescribed in the 

ADDRESSES section above, and must be 

received on or before the date specified 

in the DATES section. 

Analysis of Agreement Containing 

Consent Order to Aid Public Comment 

I. Introduction 

The Federal Trade Commission 

(‘‘Commission’’) has accepted from Air 

Products and Chemicals, Inc. (‘‘Air 

Products’’), subject to final approval, an 

Agreement Containing Consent Orders 

(‘‘Consent Agreement’’), which is 

designed to remedy the anticompetitive 

effects resulting from Air Products’ 

proposed acquisition of Airgas, Inc. 

(‘‘Airgas’’). Under the terms of the 

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Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Notices 56539 

Consent Agreement, Air Products is 

required, among other things, to divest 

15 air separation units (‘‘ASUs’’) and 

related assets currently owned and 

operated by Airgas in the following 

locations: (1) Bozrah, Connecticut; (2) 

Carrollton, Kentucky; (3) Canton, Ohio; 

(4) Dayton, Ohio; (5) New Carlisle, 

Indiana; (6) Madison, Wisconsin; (7) 

Waukesha, Wisconsin; (8) Carrollton, 

Georgia; (9) Jefferson, Georgia; (10) 

Gaston, South Carolina (2 ASUs); (11) 

Rock Hill, South Carolina; (12) Chester, 

Virginia; (13) Mulberry, Arkansas; and 

(14) Lawton, Oklahoma. With the 

divestiture of these ASUs and related 

assets, the competition that would 

otherwise be eliminated through the 

proposed acquisition of Airgas by Air 

Products will be fully preserved. 

The proposed Consent Agreement has 

been placed on the public record for 

thirty days for receipt of comments by 

interested persons. Comments received 

during this period will become part of 

the public record. After thirty days, the 

Commission will again review the 

proposed Consent Agreement and the 

comments received, and will decide 

whether it should withdraw from the 

proposed Consent Agreement, modify it, 

or make final the accompanying 

Decision and Order (‘‘Order’’). 

On February 11, 2010, Air Products 

announced its intention to acquire all of 

the outstanding shares of Airgas 

pursuant to an all-cash tender offer for 

an aggregate purchase price of 

approximately $7.0 billion. 

Consummation of this transaction is 

subject to acceptance of the offer by a 

sufficient number of the shareholders of 

Airgas. Airgas has repeatedly 

recommended that its shareholders not 

tender their shares, and a sufficient 

number of shares have not been 

tendered to date. It could be several 

months or more until the proposed 

acquisition is consummated, if it is 

consummated at all. 

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 Federal Trade 

Commission Act, as amended, 15 U.S.C. 

§ 45, by lessening competition in certain 

regional markets in the United States for 

the manufacture and sale of bulk liquid 

oxygen and bulk liquid nitrogen. 

II. The Parties 

Air Products is a global supplier of 

industrial, medical, and specialty gases 

for use in a variety of industries, 

including health care, technology, and 

energy. Air Products is the secondlargest industrial gas supplier in the 

United States with 32 liquid 

atmospheric gas-producing plants 

throughout the United States. 

Airgas is the fifth-largest industrial 

gas supplier in the United States. Airgas 

operates 16 liquid atmospheric gasproducing plants in the United States, 

most of which are concentrated in the 

Eastern United States. Airgas also is the 

largest U.S. distributor of packaged 

industrial, medical, and specialty gases 

and hardgoods, such as welding 

equipment and supplies. 

III. The Products and Structure of the 

Markets 

Both Air Products and Airgas own 

and operate ASUs in the United States 

that produce liquid atmospheric gases, 

including liquid oxygen and liquid 

nitrogen. Each gas has specific 

properties that make it uniquely suited 

for the applications in which it is used. 

For most of these applications, there is 

no viable substitute for the use of 

oxygen or nitrogen. Accordingly, 

customers would not switch to another 

gas or product even if the price of liquid 

oxygen or liquid nitrogen increased by 

five to ten percent. 

There are three primary and distinct 

methods of distributing oxygen and 

nitrogen: (1) in packaged form (typically 

delivered in gaseous cylinders or liquid 

dewars); (2) in bulk liquid form; and (3) 

in gaseous form via on-site ASUs or 

pipelines connecting customers to 

nearby ASUs. Customers choose a 

distribution method based on the 

volume of gas required. Customers who 

use bulk liquid oxygen or nitrogen 

require volumes of these gases that are 

too large to purchase economically in 

cylinders, but too small to justify the 

expense of an on-site ASU or pipeline. 

Thus, even if the price of liquid oxygen 

or liquid nitrogen increased by five to 

ten percent, customers would not 

switch to another method of 

distribution. 

Due to high transportation costs, bulk 

liquid oxygen and nitrogen may only be 

purchased economically from a supplier 

with an ASU located within 150 to 250 

miles of the customer. Therefore, it is 

appropriate to analyze the competitive 

effects of the proposed acquisition in 

regional geographic markets for bulk 

liquid oxygen and nitrogen. The 

relevant geographic markets in which to 

analyze the effects of the proposed 

acquisition are (1) the Northeast 

(including Connecticut, Maine, 

Massachusetts, New Hampshire, Eastern 

New York, Rhode Island, and Vermont), 

(2) the Eastern Midwest (including 

Eastern Indiana, Northern Kentucky, 

Southeastern Michigan, Ohio, Western 

Pennsylvania, and Northern West 

Virginia), (3) the Chicago-Milwaukee 

metropolitan area (including the area 

150 miles around Chicago), (4) the 

Southeast (including part of Alabama, 

all of Georgia, North Carolina, and 

South Carolina, part of Tennessee, and 

Southern Virginia), and (5) Oklahoma 

and surrounding areas (including 

Western Arkansas, Southeastern Kansas, 

Southwestern Missouri, Oklahoma, and 

Northeastern Texas). Because the 

boundaries of the relevant geographic 

markets at issue are largely determined 

by the proximity of overlapping ASUs, 

those geographic markets with a greater 

number of proximate, overlapping ASUs 

– for example, the Southeast market – 

tend to be larger in size than those 

markets with fewer such ASUs – for 

example, the Chicago-Milwaukee 

market. 

The markets for bulk liquid oxygen 

and nitrogen are highly concentrated. In 

all but the Oklahoma market, Air 

Products and Airgas are two of only five 

companies supplying bulk liquid 

oxygen and nitrogen to customers. In 

the Oklahoma market, Air Products is 

the largest supplier, and the parties are 

two of only six suppliers of bulk liquid 

oxygen and nitrogen. 

IV. Effects of the Acquisition 

In each of the relevant markets, as a 

result of the proposed acquisition, a 

significant competitor would be 

eliminated, and a small number of 

viable competitors would remain. 

Certain market conditions, including the 

relative homogeneity of the firms and 

products involved and availability of 

detailed market information, are 

conducive to the firms reaching terms of 

coordination and detecting and 

punishing deviations from those terms. 

Therefore, the proposed acquisition 

would enhance the likelihood of 

collusion or coordinated action between 

or among the remaining firms in each 

market. 

The proposed acquisition also would 

eliminate direct and substantial 

competition between Air Products and 

Airgas in these areas, provide Air 

Products with a larger base of sales on 

which to enjoy the benefit of a unilateral 

price increase, and eliminate a 

competitor to which customers 

otherwise could have diverted their 

sales in markets where alternative 

sources of supply are already limited. 

The proposed acquisition, therefore, 

likely would allow Air Products to 

exercise market power unilaterally, 

increasing the likelihood that 

purchasers of bulk liquid oxygen or bulk 

liquid nitrogen would be forced to pay 

higher prices in these areas. 

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56540 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Notices 

V. Entry 

Significant impediments to new entry 

exist in the markets for bulk liquid 

oxygen and nitrogen. In order to be 

competitively viable in the relevant 

markets, an ASU must produce at least 

250 to 300 tons per day of liquid 

product. The cost to construct a plant 

sufficiently large to be cost-effective can 

be 30 to 50 million dollars, most of 

which are sunk costs and cannot be 

recovered. Although an ASU can be 

constructed within two years, it is not 

economically justifiable to build an 

ASU before contracting to sell a 

substantial portion of the plant’s 

capacity, either to an on-site customer 

or to liquid customers. On-site 

customers normally sign long-term 

contracts. Because such opportunities to 

contract with these customers are rare, 

it is uncertain whether such an 

opportunity would arise in the near 

future in any of the areas affected by the 

proposed acquisition. It is even more 

difficult and time-consuming for a 

potential new entrant to contract with 

enough liquid gas customers to justify 

building a new ASU. These customers 

are generally locked into contracts with 

existing suppliers that typically last 

between five and seven years. Even if 

the new entrant were able to secure 

enough customers to justify constructing 

a new ASU in any of the affected 

markets, the new entrant may still need 

to rely on incumbent suppliers to obtain 

liquid gases to service the new entrant’s 

customers while the ASU was 

constructed. Given the difficulties of 

entry, it is unlikely that new entry could 

be accomplished in a timely manner in 

the bulk liquid oxygen and nitrogen 

markets to defeat a likely price increase 

caused by the proposed acquisition. 

VI. The Consent Agreement 

The proposed Consent Agreement 

remedies the acquisition’s likely 

anticompetitive effects in the markets 

for bulk liquid oxygen and bulk liquid 

nitrogen. Pursuant to the Consent 

Agreement, Air Products will divest all 

of the Airgas business and assets 

relating to the manufacture or sale of 

bulk liquid oxygen and nitrogen in the 

identified geographic markets. The 

Consent Agreement provides that Air 

Products must find a buyer for the 

ASUs, at no minimum price, that is 

acceptable to the Commission, no later 

than four months from the date on 

which Air Products consummates its 

acquisition of Airgas. If Air Products is 

unable to consummate the acquisition 

by February 15, 2011, however, the 

Commission, in its discretion, may 

require Air Products to seek prior 

approval of a buyer before Air Products 

can close any transaction with Airgas. 

This provision provides the 

Commission an opportunity to evaluate 

the continued availability of acceptable 

purchasers – if, for example, economic 

conditions were to deteriorate 

significantly – if the closing of the Air 

Products-Airgas transaction takes place 

after February 15, 2011. 

Any acquirer of the divested assets 

must receive the prior approval of the 

Commission. The Commission’s goal in 

evaluating possible purchasers of 

divested assets is to maintain the 

competitive environment that existed 

prior to the acquisition. A proposed 

acquirer of divested assets must not 

itself present competitive problems. 

There are a number of parties interested 

in purchasing the ASUs and related 

assets to be divested that have the 

expertise, experience, and financial 

viability to successfully purchase and 

manage these assets and retain the 

current level of competition in the 

relevant markets. The Commission is 

therefore satisfied that sufficient 

potential buyers for the divested bulk 

liquid oxygen and nitrogen assets 

currently exist. 

If the Commission determines that Air 

Products has not provided an acceptable 

buyer for the ASUs within the required 

time period, or that the manner of the 

divestiture is not acceptable, the 

Commission may appoint a trustee to 

divest the assets. The trustee would 

have the exclusive power and authority 

to accomplish the divestiture. 

The Consent Agreement also contains 

an Order to Hold Separate and Maintain 

Assets, which will serve to protect the 

viability, marketability, and 

competitiveness of the divestiture asset 

package until the assets are divested to 

a buyer approved by the Commission. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed Consent Agreement, and it is 

not intended to constitute an official 

interpretation of the proposed Consent 

Agreement or to modify its terms in any 

way. 

By direction of the Commission. 

Donald S. Clark 

Secretary. 

[FR Doc. 2010–23132 Filed 9–15–10; 7:50 am] 

BILLING CODE 6750–01–S 

GENERAL SERVICES 

ADMINISTRATION 

[OMB Control No. 3090–00XX; Docket 2010– 

0002; Sequence 21] 

Office of Governmentwide Policy: 

Submission for OMB Review; 

Information Collection, Real Property 

Status Report, Standard Form (SF– 

XXXX) 

AGENCY: Office of Governmentwide 

Policy, General Services Administration 

(GSA). 

ACTION: Submission for OMB Review; 

Comment Request and Final Notice of 

the Real Property Status Report (RPSR) 

form. 

SUMMARY: Effective with publication of 

this notice in the Federal Register, 

agencies will be able to utilize a new 

standard form to collect information on 

the status of real property under 

financial assistance awards. Under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. Chapter 35), the 

GSA Office of Governmentwide Policy 

is submitting to the Office of 

Management and Budget (OMB) a 

request to review and approve a new 

information collection requirement 

concerning reporting real property 

status. The GSA, on behalf of the Grants 

Policy Committee proposes to issue a 

new standard form, the Real Property 

Status Report (RPSR) (SF–XXXX). Two 

notices were published in the Federal 

Register at 72 FR 64646, November 16, 

2007 and 73 FR 67177, November 13, 

2008. 

This notice is being issued to address 

comments received as a result of the 

notice published in the Federal Register 

at 73 FR 67177, November 13, 2008 and 

to present changes made to the report as 

a result of those comments. We 

anticipate this being the final notice 

before the form and instructions are 

finalized. The general public and 

Federal agencies, however, are invited 

to comment on the proposed final 

format during the 30 day public 

comment period. 

To view the report and the full list of 

comments received along with work 

group responses go to OMB’s web page 

at http://www.OMB.gov and click on the 

link ‘‘Management,’’ then the link 

‘‘Grants Management,’’ then the link 

‘‘Forms,’’ then the link ‘‘Proposed 

Government-Wide Standard Grants 

Reporting Forms.’’ 

DATES: Comment Due Date: October 18, 

2010. 

ADDRESSES: Submit comments 

identified by Information Collection 

3090–00XX, Real Property Status 

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