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Federal Register / Vol. 72, No.

181 / Wednesday, September 19, 2007 / Notices 53585

FEDERAL TRADE COMMISSION considered by the Commission, and will Applications of Rhode Island, Inc.
be available to the public on the FTC Under the terms of the Consent
[File No. 051 0234]
website, to the extent practicable, at Agreement, ARA and Fresenius are
American Renal Associates, Inc.; As a matter of discretion, prohibited from agreeing with other
Analysis of Agreement Containing the FTC makes every effort to remove dialysis clinic operators to close any
Consent Order to Aid Public Comment home contact information for clinics, or allocate any dialysis service
individuals from the public comments it markets. ARA is further required to
AGENCY: Federal Trade Commission. receives before placing those comments notify the Commission of acquisitions of
ACTION: Proposed Consent Agreement. on the FTC website. More information, dialysis clinic assets in the Warwick/
including routine uses permitted by the Cranston, Rhode Island, area.
SUMMARY: The consent agreement in this Privacy Act, may be found in the FTC’s The Consent Agreement has been
matter settles alleged violations of privacy policy, at placed on the public record for 30 days
federal law prohibiting unfair or ftc/privacy.htm. to solicit comments from interested
deceptive acts or practices or unfair persons. Comments received during this
methods of competition. The attached period will become part of the public
Martha Oppenheim (202) 326-2941,
Analysis to Aid Public Comment record. After 30 days, the Commission
Bureau of Competition, Room NJ-7264,
describes both the allegations in the will again review the Consent
600 Pennsylvania Avenue, NW,
draft complaint and the terms of the Agreement and the comments received,
Washington, D.C. 20580.
consent order—embodied in the consent and will decide whether it should
agreement—that would settle these SUPPLEMENTARY INFORMATION: Pursuant
to section 6(f) of the Federal Trade withdraw from the Consent Agreement
allegations. or make it final.
Commission Act, 38 Stat. 721, 15 U.S.C.
DATES: Comments must be received on Pursuant to an Asset Purchase
46(f), and § 2.34 of the Commission
or before October 9, 2007. Agreement dated August 3, 2005, ARA
Rules of Practice, 16 CFR 2.34, notice is
ADDRESSES: Interested parties are proposed to acquire five Fresenius
hereby given that the above-captioned
invited to submit written comments. clinics in the Providence, Rhode Island/
consent agreement containing a consent Fall River, Massachusetts area, and pay
Comments should refer to ‘‘American order to cease and desist, having been
Renal Associates, File No. 051 0234,’’ to Fresenius to close another three
filed with and accepted, subject to final competing clinics, for approximately
facilitate the organization of comments. approval, by the Commission, has been
A comment filed in paper form should $4.4 million. ARA’s agreement to pay
placed on the public record for a period Fresenius to close its clinics is a per se
include this reference both in the text of thirty (30) days. The following
and on the envelope, and should be violation of the antitrust laws. In
Analysis to Aid Public Comment addition, the Commission’s Complaint
mailed or delivered to the following describes the terms of the consent
address: Federal Trade Commission/ alleges, as summarized below, that the
agreement, and the allegations in the Asset Purchase Agreement, if
Office of the Secretary, Room 135-H, complaint. An electronic copy of the
600 Pennsylvania Avenue, NW, consummated, would violate Section 5
full text of the consent agreement of the Federal Trade Commission Act, as
Washington, D.C. 20580. Comments package can be obtained from the FTC
containing confidential material must be amended, 15 U.S.C. § 45, and Section 7
Home Page (for September 7, 2007), on of the Clayton Act, as amended, 15
filed in paper form, must be clearly the World Wide Web, at http:// U.S.C. § 18, by reducing dialysis
labeled ‘‘Confidential,’’ and must A capacity; allocating dialysis customers,
comply with Commission Rule 4.9(c). paper copy can be obtained from the territories, or markets; and lessening
16 CFR 4.9(c) (2005).1 The FTC is FTC Public Reference Room, Room 130- competition in the market for the
requesting that any comment filed in H, 600 Pennsylvania Avenue, N.W., provision of outpatient dialysis services
paper form be sent by courier or Washington, D.C. 20580, either in in the Warwick/Cranston area.
overnight service, if possible, because person or by calling (202) 326-2222.
U.S. postal mail in the Washington area Public comments are invited, and may II. The Parties
and at the Commission is subject to be filed with the Commission in either American Renal Associates, Inc.,
delay due to heightened security paper or electronic form. All comments which is headquartered in Danvers,
precautions. Comments that do not should be filed as prescribed in the Massachusetts, operates 65 dialysis
contain any nonpublic information may ADDRESSES section above, and must be centers in 15 states and the District of
instead be filed in electronic form as received on or before the date specified Columbia. ARA is the sixth-largest
part of or as an attachment to email in the DATES section. provider of outpatient dialysis services
messages directed to the following email in the United States, serving 2,300
Analysis of Agreement Containing
box: dialysis patients, with 2004 revenues
Consent Order to Aid Public Comment
The FTC Act and other laws the exceeding $80 million. In 2005, ARA
Commission administers permit the I. Introduction owned six clinics in Rhode Island,
collection of public comments to The Federal Trade Commission which were located in Cranston, East
consider and use in this proceeding as (‘‘Commission’’) has accepted, subject to Providence, Johnston, Pawtucket,
appropriate. All timely and responsive final approval, an Agreement Providence, and Tiverton, and one in
public comments, whether filed in Containing Consent Order (‘‘Consent nearby Fall River, Massachusetts.
paper or electronic form, will be Agreement’’) from American Renal Fresenius Medical Care Holdings, Inc.
1 The comment must be accompanied by an
Associates, Inc., and affiliates including, is a corporation organized, existing, and
explicit request for confidential treatment,
but not limited to, ARA-East Providence doing business under and by virtue of
Dialysis LLC, ARA-Johnston Dialysis the laws of the State of New York, with
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including the factual and legal basis for the request,

and must identify the specific portions of the LLC, ARA-Fall River Dialysis LLC, and its principal place of business located at
comment to be withheld from the public record. Dialysis Center of West Warwick LLC; 95 Hayden Avenue, Lexington,
The request will be granted or denied by the
Commission’s General Counsel, consistent with
and Fresenius Medical Care Holdings, Massachusetts 02420-9192. Fresenius is
applicable law and the public interest. See Inc. and affiliates, including Renal Care the parent of entities that are parties to
Commission Rule 4.9(c), 16 CFR 4.9(c). Group, Inc. and Bio-Medical the Consent Agreement, including Renal

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53586 Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 / Notices

Care Group, Inc. and Bio-Medical B. Agreement to Eliminate Competition population density, roads, geographic
Applications of Rhode Island, Inc. by Acquiring Clinics features, and political boundaries.
With respect to the clinic acquisition
III. The Asset Purchase Agreement The Commission also charges that portion of the asset purchase agreement,
ARA’s proposed acquisition of the Commission’s complaint alleges that
ARA and Fresenius entered into an Fresenius’s two Warwick, Rhode Island, the market for outpatient dialysis
Asset Purchase Agreement dated August facilities would have substantially services in the Warwick/Cranston area
3, 2005, under which Fresenius agreed reduced competition for outpatient is highly concentrated. The market has
to sell five clinics located in Rhode dialysis services by eliminating only two dialysis providers, ARA and
Island—the Wakefield, Westerly, competition between these Warwick Fresenius, and the transaction as
Woonsocket, Warwick, and West clinics and ARA’s nearby Cranston, originally proposed would result in a
Warwick clinics—to ARA for Rhode Island, clinic. Outpatient dialysis monopoly in the Warwick/Cranston
$2,759,000. The agreement also required services is the relevant product market area. The evidence shows that health
Fresenius to close its clinics in East in which to assess the effects of the plans and other private payers who pay
Providence and North Providence, clinic acquisition portion of the asset for dialysis services used by their
Rhode Island, and in Fall River, purchase agreement. End stage renal members benefit from direct
Massachusetts, in exchange for ARA’s disease (ESRD) is a chronic disease competition between ARA and
payment of $1,641,000. The parties characterized by a near total loss of Fresenius when negotiating the rates of
terminated this agreement on March 13, function of the kidneys, which in the dialysis provider. As a result, the
2006, after the FTC staff raised antitrust healthy people remove toxins and proposed combination likely would
concerns. excess fluid from the blood. ESRD may result in higher prices and reduced
be treated through dialysis, a process incentives to improve service or quality
IV. The Complaint whereby a person’s blood is filtered by in the Warwick/Cranston outpatient
A. Agreement Between Competitors to machines that act as artificial kidneys. dialysis services market defined in the
Close Clinics Most ESRD patients receive dialysis complaint. Also, the complaint alleges
treatments in an outpatient dialysis that in this market, entry on a level
The Commission’s complaint charges clinic three times per week, in sessions sufficient to deter or counteract the
that first and foremost, the agreement lasting between three and five hours. likely anticompetitive effects of the
between Fresenius and ARA— The only alternative to outpatient proposed transaction is not likely to
competitors in the provision of dialysis treatments for ESRD patients is occur in a timely manner. The primary
outpatient dialysis services—to close a kidney transplant. However, the wait- barrier to entry is the difficulty
three Fresenius clinics was a horizontal time for donor kidneys—during which associated with locating nephrologists
ESRD patients must receive dialysis with established patient pools who are
agreement to eliminate competition and
treatments—can exceed five years. willing and able to serve as medical
to reduce dialysis capacity in the three
Additionally, many ESRD patients are directors. Federal law requires each
affected areas. Each of the Fresenius dialysis clinic to have a physician
clinics to be closed was located close to not viable transplant candidates. As a
result, many ESRD patients have no medical director. As a practical matter,
a competing ARA outpatient dialysis having a nephrologist serve as medical
clinic. The parties memorialized their alternative to ongoing dialysis
treatments. director is essential to the success of a
agreement in a written contract, listing clinic because medial directors are the
each Fresenius clinic to be closed and The Commission’s complaint also primary source of referrals.
the specific amount of money to be paid alleges that the relevant geographic
by ARA for closing each clinic, and market in which to assess the V. The Consent Agreement
allocating each amount to the ARA competitive effects of the clinic The proposed relief in this case is
clinic closest to the clinic to be closed. acquisition portion of the asset purchase narrowly tailored to address both the
The parties further agreed that Fresenius agreement is the Cranston and Warwick agreement to close clinics and the
would not reopen any outpatient area in Rhode Island. The relevant attempted acquisition of clinics in the
geographic market for the provision of Warwick/Cranston area. The order
dialysis clinics within 10 to 12 miles of
outpatient dialysis services is defined would prohibit ARA and Fresenius for
the closed facilities for at least five
by the distance ESRD patients are ten years from agreeing with any person
years, and would attempt to enforce the
willing and able to travel to receive to close a dialysis clinic, or allocate any
non-compete provisions of its dialysis treatments, and is thus local in dialysis customer, territory, or market.
agreements with the medical directors nature. Because ESRD patients often The consent order also would require
of the closed facilities for ARA’s benefit, suffer from multiple health problems ARA to give the Commission prior
preventing those physicians from and may require assistance traveling to notice before acquiring any interest in a
serving as medical directors for any and from the dialysis clinic, and dialysis clinic in the Warwick/Cranston
potential new entrant. because of the high frequency of area because there is a risk that ARA
Agreements to pay a competitor to treatments, these patients are unwilling remains interested in expanding in the
exit a market, such as the one negotiated and unable to travel long distances for area, but any such further acquisition
by ARA and Fresenius, are per se dialysis treatment. The time and likely would fall below Hart-Scott-
unlawful. Indeed, the parties offered no distance a patient will travel in a Rodino Act premerger notification
competitive justification for their particular location are significantly thresholds.
conduct, and it is unlikely that there is affected by local traffic patterns; The purpose of this analysis is to
whether an area is urban, suburban, or facilitate public comment on the
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any plausible justification for such an

agreement. Such a naked restraint, like rural; local geography; and a patient’s Consent Agreement, and it is not
a market division agreement or price proximity to the nearest dialysis clinic. intended to constitute an official
The size and dimensions of relevant interpretation of the proposed Decision
fixing, is a per se violation of the
geographic markets are also influenced and Order, or to modify its terms in any
antitrust laws.
by a variety of other factors including way.

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Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 / Notices 53587

By direction of the Commission. utility, and clarity of the information to Circulars A–102 and A–110 require
be collected; and (4) the use of advances of Federal funds to be
Donald S. Clark,
automated collection techniques or scheduled as closely as possible to the
other forms of information technology to grantee’s disbursement needs and
[FR Doc. E7–18378 Filed 9–18–07: 8:45 am] minimize the information collection payment methods should allow for
BILLING CODE 6750–01–S burden. monthly, bi-weekly or more frequent
To obtain copies of the supporting payments in support of this
statement and any related forms for the requirement. The PSC–270 is used by
DEPARTMENT OF HEALTH AND proposed paperwork collections grantees to obtain grant funds. The PSC–
HUMAN SERVICES referenced above, e-mail your request, 272 form is used to monitor federal cash
[Document Identifier: OS–0937–0200; 30- including your address, phone number, advances to grantees and obtain Federal
day notice] OMB number, and OS document cash disbursement data. The forms are
identifier, to designed to provide essential cash
Agency Information Collection, or call management information, assist the
Request; 30-Day Public Comment the Reports Clearance Office on (202) grantee in meeting accountability
Request 690–6162. Written comments and requirements, and ensure compatibility
AGENCY: Office of the Secretary, HHS. recommendations for the proposed between data in the Payment
In compliance with the requirement information collections must be Management System (PMS) operated by
of section 3506(c)(2)(A) of the received within 30 days of this notice DPM and the grantee organization’s
Paperwork Reduction Act of 1995, the directly to the OS OMB Desk Officer all records.
Office of the Secretary (OS), Department comments must be faxed to OMB at The PSC–270 form is used monthly by
of Health and Human Services, is (202) 395–6974. approximately 210 HHS grantees to
publishing the following summary of a Title of the Collection—HHS Payment obtain grant funds and is used in lieu of
proposed collection for public Management System Forms -Extension- the SF–270. The computerized PSC–272
comment. Interested persons are invited OMB No. 0937–0200—Assistant form is utilized quarterly by
to send comments regarding this burden Secretary for Administration and approximately 22,240 grantees of grant
estimate or any other aspect of this Management (ASAM) -Program Support awards from HHS and other Federal
collection of information, including any Center (PSC)—Division of Payment agencies that are paid through DPM.
of the following subjects: (1) The Management (DPM). The forms are completed by State, local
necessity and utility of the proposed Abstract: The Division of Payment and tribal governments, profit and
information collection for the proper Management (DPM) is requesting a three nonprofit businesses and institutions
performance of the agency’s functions; year extension of the HHS Payment receiving grants from HHS and other
(2) the accuracy of the estimated Management System Forms. Treasury Federal agencies serviced by the
burden; (3) ways to enhance the quality, regulations at 31 CFR part 205 and OMB Division of Payment Management.


Number of
Type of Number of burden hours Total burden
Forms responses per
respondent respondents per response hours
respondent (in hours)

PSC–272 ................................. Quarterly ..................................................... 22,240 4 3 266,880

PSC–270 ................................. Monthly ....................................................... 210 12 15/60 630

Total ................................. ..................................................................... ........................ ........................ ........................ 267,510

Dated: 09/10/2007. Name: Task Force on Community adolescent health; reducing risky
Alice Bettencourt, Preventive Services. adolescent sexual behavior; worksite
Office of the Secretary, Paperwork Reduction Times and Dates: 8 a.m.–6 p.m. EDT, health promotion—influenza
Act Reports Clearance Officer. October 17, 2007. 8 a.m.–1 p.m. EDT, vaccination; controlling obesity; and
[FR Doc. E7–18401 Filed 9–18–07; 8:45 am] October 18, 2007. updating the Community Guide’s
BILLING CODE 4151–17–P Place: Centers for Disease Control and vaccine-preventable diseases review.
Prevention, Roybal Building 19, 1600 Agenda items are subject to change as
Clifton Road, Atlanta, Georgia 30333. priorities dictate.
DEPARTMENT OF HEALTH AND Status: Open to the public, limited Persons interested in reserving a
HUMAN SERVICES only by the space available. space for this meeting should call Tony
Purpose: The mission of the Task Pearson-Clarke at 404.498.0972 by close
Centers for Disease Control and Force is to develop and publish the
Prevention of business on October 5, 2007.
Guide to Community Preventive
Services (Community Guide), which FOR FURTHER INFORMATION CONTACT:
Task Force on Community Preventive
consists of systematic reviews of the Tony Pearson-Clarke, Community Guide
best available scientific evidence and Branch, Coordinating Center for Health
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In accordance with section 10(a)(2) of associated recommendations regarding Information and Service, National
the Federal Advisory Committee Act and what works in the delivery of Center for Health Marking, Division of
(Pub. L. 92–463), the Centers for Disease essential public health services. Health Communication and Marketing,
Control and Prevention (CDC) Topics include: reducing excessive 1600 Clifton Road, M/S E–69, Atlanta,
announces the following meeting: alcohol consumption; improving GA 30333, telephone: 404.498.0972.

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