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25582 Federal Register / Vol. 69, No.

89 / Friday, May 7, 2004 / Notices

President) 230 South LaSalle Street, should be sent to the following e-mail Washington area and at the Commission
Chicago, Illinois 60690-1414: box: consentagreement@ftc.gov. is subject to delay due to heightened
1. Marshall & Ilsley Corporation, FOR FURTHER INFORMATION CONTACT: security precautions. Comments filed in
Milwaukee, Wisconsin; through its Christina Perez, FTC, Bureau of electronic form should be sent to the
subsidiary, Metavante Corporation, to Competition, 600 Pennsylvania Avenue, following e-mail box:
acquire 100 percent of the voting shares NW., Washington, DC 20580, (202) 326– consentagreement@ftc.gov.
of The Kirchman Corporation, 2048. The FTC Act and other laws the
Altamonte Springs, Florida, and thereby SUPPLEMENTARY INFORMATION: Pursuant Commission administers permit the
engage in data processing activities and to Section 6(f) of the Federal Trade collection of public comments to
management consulting, pursuant to Commission Act, 38 Stat. 721, 15 U.S.C. consider and use in this proceeding as
section 225.28(b)(9)(i)(A)(1) and 46(f), and Section 2.34 of the appropriate. All timely and responsive
(b)(14)(i) of Regulation Y. Commission’s Rules of Practice, 16 CFR public comments, whether filed in
Board of Governors of the Federal Reserve 2.34, notice is hereby given that the paper or electronic form, will be
System, May 3, 2004. above-captioned consent agreement considered by the Commission, and will
Robert deV. Frierson, containing a consent order to cease and be available to the public on the FTC
desist, having been filed with and Web site, to the extent practicable, at
Deputy Secretary of the Board.
accepted, subject to final approval, by http://www.ftc.gov. As a matter of
[FR Doc.04–10404 Filed 5–6–04; 8:45 am]
the Commission, has been placed on the discretion, the FTC makes every effort to
BILLING CODE 6210–01–S
public record for a period of thirty (30) remove home contact information for
days. The following Analysis to Aid individuals from the public comments it
Public Comment describes the terms of receives before placing those comments
FEDERAL TRADE COMMISSION the consent agreement, and the on the FTC Web site. More information,
[File No. 041 0020] allegations in the complaint. An including routine uses permitted by the
electronic copy of the full text of the Privacy Act, may be found in the FTC’s
American Air Liquide, Inc., et al.; consent agreement package can be privacy policy, at http://www.ftc.gov/
Analysis to Aid Public Comment obtained from the FTC Home Page (for ftc/privacy.htm.
April 29, 2004), on the World Wide Analysis of Agreement Containing
AGENCY: Federal Trade Commission.
Web, at ‘‘http://www.ftc.gov/os/2004/ Consent Orders To Aid Public Comment
ACTION: Proposed Consent Agreement. 04/index.htm.’’ A paper copy can be
obtained from the FTC Public Reference I. Introduction
SUMMARY: The consent agreement in this
Room, Room 130–H, 600 Pennsylvania The Federal Trade Commission
matter settles alleged violations of
Avenue, NW., Washington, DC 20580, (‘‘Commission’’) has accepted, subject to
federal law prohibiting unfair or
either in person or by calling (202) 326– final approval, an Agreement
deceptive acts or practices or unfair
2222. Containing Consent Orders (‘‘Consent
methods of competition. The attached Public comments are invited, and may
Analysis to Aid Public Comment Agreement’’) from L’Air Liquide, S.A.,
be filed with the Commission in either which is designed to remedy the
describes both the allegations in the paper or electronic form. Written
draft complaint that accompanies the anticompetitive effects resulting from
comments must be submitted on or L’Air Liquide, S.A.’s acquisition of the
consent agreement and the terms of the before May 29, 2004. Comments should
consent order—embodied in the consent entire share capital of Messer Griesheim
refer to ‘‘American Air Liquide, Inc., et GmbH (‘‘Messer’’) and the subsequent
agreement—that would settle these al., File No. 041 0020,’’ to facilitate the
allegations. transfer of Messer Griesheim Industries,
organization of comments. A comment Inc. (‘‘MGI’’) to its wholly-owned
DATES: Comments must be received on filed in paper form should include this subsidiary American Air Liquide.
or before May 29, 2004. reference both in the text and on the Under the terms of the Consent
ADDRESSES: Comments should refer to envelope, and should be mailed or Agreement, American Air Liquide is
‘‘American Air Liquide, Inc., et al., File delivered to the following address: required to divest the air separation
No. 041 0020,’’ to facilitate the Federal Trade Commission/Office of the units (‘‘ASUs’’) and related assets
organization of comments. A comment Secretary, Room H–159, 600 currently owned and operated by MGI
filed in paper form should include this Pennsylvania Avenue, NW., in the following six locations: (1)
reference both in the text and on the Washington, DC 20580. If the comment Vacaville, California; (2) Irwindale,
envelope, and should be mailed or contains any material for which California; (3) San Antonio, Texas, (4)
delivered to the following address: confidential treatment is requested, it Westlake, Louisiana; (5) DeLisle,
Federal Trade Commission/Office of the must be filed in paper (rather than Mississippi; and (6) Waxahachie, Texas.
Secretary, Room H–159, 600 electronic) form, and the first page of The divestiture will take place no later
Pennsylvania Avenue, NW., the document must be clearly labeled than six months from the date the
Washington, DC 20580. Comments ‘‘Confidential.’’ 1 The FTC is requesting Consent Agreement becomes final. The
containing confidential material must be that any comment filed in paper form be Consent Agreement also includes an
filed in paper form, as explained in the sent by courier or overnight service, if Agreement to Hold Separate that
Supplementary Information section. The possible, because U.S. postal mail in the requires American Air Liquide to
FTC is requesting that any comment preserve the ASUs as viable,
1 Commission Rule 4.2(d), 16 CFR 4.2(d). The
filed in paper form be sent by courier or competitive and ongoing operations
comment must be accompanied by an explicit
overnight service, if possible, because request for confidential treatment, including the until the divestiture is achieved.
U.S. postal mail in the Washington area factual and legal basis for the request, and must The proposed Consent Agreement has
and at the Commission is subject to identify the specific portions of the comment to be been placed on the public record for
delay due to heightened security withheld from the public record. The request will thirty (30) days to solicit comments
be granted or denied by the Commission’s General
precautions. Comments filed in Counsel, consistent with applicable law and the
from interested persons. Comments
electronic form (except comments public interest. See Commission Rule 4.9(c), 16 CFR received during this period will become
containing any confidential material) 4.9(c). part of the public record. After thirty

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Federal Register / Vol. 69, No. 89 / Friday, May 7, 2004 / Notices 25583

(30) days, the Commission will again that make it uniquely suited for the coordinated action between or among
review the proposed Consent Agreement applications in which it is used. For the remaining firms in each market.
and the comments received, and will most of these applications, there is no Furthermore, in the Southern Texas and
decide whether it should withdraw from substitute for the use of oxygen, Western Louisiana markets, MGI and
the proposed Consent Agreement or nitrogen, or argon. Customers would not American Air Liquide are the only
make it final. switch to another gas or product even if producers capable of supplying liquid
Pursuant to a sale and purchase the price of liquid oxygen, liquid oxygen and liquid nitrogen to customers
agreement dated January 19, 2004, L’Air nitrogen or liquid argon increased by in those markets economically. By
Liquide, S.A. agreed to acquire the five to ten percent. eliminating competition between these
entire share capital of Messer. The Additionally, customers have three two suppliers in these areas, the
aggregate purchase price of the distinct distribution methods to choose proposed acquisition would allow
transaction is approximately $3.5 billion from in receiving oxygen, nitrogen, or American Air Liquide to exercise
and includes $1.3 billion of Messer’s argon. These gases are available in market power unilaterally, thereby
debt that L’Air Liquide, S.A. has agreed cylinders, in liquid form, and through increasing the likelihood that
to assume. As a result of this agreement, an on-site ASU or a pipeline. Customers purchasers of liquid oxygen or liquid
L’Air Liquide, S.A. will immediately choose a distribution method based on nitrogen would be forced to pay higher
transfer MGI, a wholly-owned the volume of gas required. Customers prices in these areas.
subsidiary of Messer, which produces who use liquid oxygen, liquid nitrogen, The market for liquid argon is also
and sells industrial gases in the United or liquid argon generally require highly concentrated, with only five
States, to American Air Liquide. The volumes of these gases that are too large suppliers producing sufficient amounts
Commission’s complaint alleges that the to purchase economically in cylinders, of liquid argon to supply customers
proposed acquisition and subsequent but too small to justify the expense of around the United States. The
transfer of MGI, if consummated, would an on-site ASU or pipeline. In fact, even remaining firms are very small and local
violate Section 7 of the Clayton Act, as if the price of liquid oxygen, liquid in nature, and produce liquid argon
amended, 15 U.S.C. 18, and Section 5 of nitrogen or liquid argon increased by primarily to meet internal needs.
the Federal Trade Commission Act, as five to ten percent, customers would not Additionally, the five large suppliers of
amended, 15 U.S.C. 45, by lessening switch to another method of liquid argon all transport the product
competition in the market for liquid distribution. from ASUs in the middle and eastern
argon in the continental United States Due to high transportation costs, part of the United States to customers
and certain regional markets in the liquid oxygen and liquid nitrogen may on the West Coast, where the ASUs
United States for liquid oxygen and only be purchased economically from a owned and operated by these suppliers
nitrogen. supplier with an ASU located within do not produce enough argon to meet
one hundred and fifty (150) to two customers’ demands. Over the past few
II. The Parties hundred and fifty (250) miles of the years, MGI has had excess capacity in
L’Air Liquide, S.A. is a world leader customer. Therefore, it is appropriate to liquid argon which it has used to win
in industrial and medical gases and analyze the competitive effects of the new customers by offering low prices,
related equipment. American Air proposed acquisition using local especially to customers in Texas, Gulf
Liquide is the parent corporation of the geographic markets for liquid oxygen Coast and California. By eliminating
United States subsidiary that produces and liquid nitrogen. The relevant local MGI as a competitor in the liquid argon
and supplies oxygen, nitrogen, and markets in which to analyze the effects market, particularly on the West Coast,
argon as well as many other industrial of this proposed acquisition are: the proposed acquisition would
gases to customers for numerous Southern California, Northern enhance the likelihood of coordinated
applications in a variety of industries, California, Southern Texas, Western action or collusion between or among
including the petrochemical, Louisiana, and the Central Gulf Coast. the remaining firms, and could result in
manufacturing and fabrication Because liquid argon is a more rare and customers paying higher prices for
industries as well as the medical field. more expensive gas than liquid oxygen liquid argon.
American Air Liquide’s subsidiary is the and liquid nitrogen, it may be Significant impediments to new entry
fourth largest supplier of industrial economically transported much greater exist in the markets for liquid oxygen,
gases in the United States, with twenty distances. Therefore, the continental liquid nitrogen, and liquid argon. In
seven (27) ASUs throughout the United United States and regions of the United order to be cost competitive in these
States, most of which are in Texas and States are the appropriate geographic markets, an ASU must produce at least
the Gulf Coast region. markets in which to analyze the two hundred and fifty (250) to three
Messer’s U.S. subsidiary, MGI, is competitive effects of the proposed hundred (300) tons per day of liquid
currently the fifth largest producer of acquisition for liquid argon. product. The cost to construct a plant of
liquid atmospheric gases (oxygen, The markets for liquid oxygen and this size can be thirty ($30) to forty ($40)
nitrogen and argon) in the United States. liquid nitrogen are highly concentrated. million, most of which is sunk and
MGI owns and operates twenty four (24) In three of the five relevant geographic cannot be recovered. While an ASU can
ASUs, including several located in markets (Southern California, Northern theoretically be constructed within two
Texas and the Gulf Coast region, as well California, and the Central Gulf Coast) years, it is not economically justifiable
as in northern and southern California. American Air Liquide and MGI are two to build an ASU before contracting to
of only five companies supplying liquid sell a substantial portion of the plant’s
III. Liquid Oxygen, Liquid Nitrogen, and oxygen and liquid nitrogen to daily capacity, either to an on-site
Liquid Argon customers. Additionally, MGI has been customer or to several liquid customers.
Both American Air Liquide and MGI an aggressive participant in the market On-site customers normally sign long-
own and operate ASUs in the United for these gases, offering low prices to term contracts, and as such
States to provide customers with liquid customers and serving as a price opportunities to contract with these
atmospheric gases, including liquid restraint on the other suppliers. As a customers are rare, it is uncertain
oxygen, liquid nitrogen, and liquid result, the proposed acquisition would whether such an opportunity would
argon. Each gas has specific properties enhance the likelihood of collusion or arise at any time in the near future in

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25584 Federal Register / Vol. 69, No. 89 / Friday, May 7, 2004 / Notices

any of the areas affected by the competitive problems. Numerous GENERAL SERVICES
acquisition. It is even more difficult and entities are interested in purchasing the ADMINISTRATION
time-consuming for a potential new divested assets, including industrial gas
[FMR Bulletin 2004–B1]
entrant to try to contract with enough suppliers that currently have a regional
liquid gas customers to justify building presence in the industry, but do not Federal Management Regulation;
a new ASU in a market. These compete in the areas affected by the Federal Property Profile Summary
customers are generally locked into acquisition, as well as entities in related Report
contracts with existing suppliers that fields that are interested in entering into
typically last between five (5) and seven AGENCY: General Services
the production and sale of industrial
(7) years. Even if the new entrant was Administration.
gases. The Commission is therefore
able to contract with enough liquid ACTION: Notice.
satisfied that sufficient potential buyers
customers to justify constructing a new
ASU in any of the affected markets, the for the divested assets exist. SUMMARY: In furtherance of FMR
new entrant would still need to rely on The Consent Agreement also contains Bulletin 2003–B2, this notice announces
suppliers already in the market to obtain an Agreement to Hold Separate. This the release of the FY 2003 version of the
liquid gases to service the new entrant’s will serve to protect the viability, Federal Real Property Profile (FRPP)
customers while the ASU was marketability, and competitiveness of Summary Report, which provides an
constructed. Given the difficulties of the divestiture asset package until it is overview of the United States
entering the market, it is unlikely that divested to a buyer approved by the Government’s owned and leased real
new entry could be accomplished in a Commission. The Agreement to Hold property as of September 30, 2003. The
timely manner in any of the markets for Separate became effective on the date FRPP Summary Report for FY 2003 is
liquid oxygen or liquid nitrogen, and the Commission accepted the Consent now available and is an update of the
even more unlikely that entry would Agreement for placement on the public FRPP Summary Report for FY 2002.
occur in a timely manner in all of the record and will remain in effect until EFFECTIVE DATE: May 7, 2004.
relevant markets. Additionally, as an American Air Liquide successfully FOR FURTHER INFORMATION CONTACT: For
ASU must produce large amounts of clarification of content, contact Stanley
divests the divestiture asset package
oxygen and nitrogen in order to produce C. Langfeld, General Services
any argon, a new entrant into the liquid according to the terms of the Decision
and Order. Administration, Real Property Policy
argon market would not be able to Division, (MPR), Washington, DC 20405;
economically build an ASU to produce The Consent Agreement contains a stanley.langfeld@gsa.gov, (202) 501–
only liquid argon, rather it would need provision for the Commission to appoint 1737. Please cite FMR Bulletin 2004–B1.
to find customers to purchase all three a monitor-trustee to oversee the SUPPLEMENTARY INFORMATION: The FRPP
gases. Therefore, it is unlikely that new management of the divestiture asset Summary Report is a summary of the
entry would occur in the liquid argon package until the divestiture is Government’s real property assets, as
market absent concurrent new entry in complete, and for a brief transition reported to the General Services
the liquid oxygen and nitrogen markets. period after the sale. In order to ensure Administration’s (GSA’s) Federal Real
IV. The Consent Agreement that the Commission remains informed Property Profile Internet Application
about the status of the asset package (FRPP–IA) reporting system. It provides
The Consent Agreement effectively
remedies the acquisition’s pending divestiture, about the efforts an overview of Federal real property
anticompetitive effects in the markets being made to accomplish the assets categorized in three major areas—
for liquid oxygen, liquid nitrogen and divestiture, and the provision of buildings, land, and structures. The
liquid argon. Pursuant to the Consent services and assistance during the FRPP–IA reporting system is a redesign
Agreement, American Air Liquide will transition period, the Consent of the formerWorldwide Inventory data
divest the six (6) air separation units Agreement requires the monitor-trustee collection and reporting system which
listed in Section I to a single purchaser to file periodic reports with the was discontinued after FY 2001.
that will operate the ASUs as a going Commission until the divestiture is Dated: April 15, 2004.
concern. The Consent Agreement accomplished and the transition period G. Martin Wagner,
provides that American Air Liquide has ended. Associate Administrator, Office of
must find a buyer for the assets, at no The purpose of this analysis is to Governmentwide Policy.
minimum price, that is acceptable to the facilitate public comment on the
Commission, no later than six (6) General Services Administration
Consent Agreement, and it is not
months from the date the Consent [FMR Bulletin 2004–B1]
intended to constitute an official
Agreement becomes final. If the
Commission determines that American interpretation of the proposed Decision Real Property
Air Liquide has not provided an and Order or the Agreement to Hold To: Heads of Federal Agencies
acceptable buyer within this time period Separate, or to modify their terms in any Subject: Federal Real Property Profile
or that the manner of the divestiture is way. Summary Report
not acceptable, the Commission may By direction of the Commission. 1. What is the purpose of this
appoint a trustee to divest the assets. Donald S. Clark, bulletin? This bulletin announces the
The trustee will have the exclusive Secretary. release of the Fiscal Year 2003 version
power and authority to accomplish the of the Federal Real Property Profile
[FR Doc. 04–10409 Filed 5–6–04; 8:45 am]
divestiture. (FRPP) Summary Report, which
The Commission’s goal in evaluating BILLING CODE 6750–01–P
provides an overview of the United
possible purchasers of divested assets is States Government’s owned and leased
to maintain the competitive real property as of September 30, 2003.
environment that existed prior to the 2. What is the background?
acquisition. A proposed buyer of a. This annual publication is a
divested assets must not itself present summary report of the Federal

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