Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Notices 10795

FEDERAL MINE SAFETY AND HEALTH 1. R. Tracy Fox, Little Rock, Arkansas, FEDERAL RETIREMENT THRIFT REVIEW COMMISSION as trustee of the Smith Associated INVESTMENT BOARD Banking Corporation Voting Trust Sunshine Act Notice Agreement, which will gain control of Sunshine Act; Notice of Meeting Smith Associated Banking Corporation, TIME AND DATE: 2 p.m., Wednesday, TIME AND DATE: 9 a.m. (Eastern Time) Hot Springs, Arkansas; and indirectly March 24, 2010. March 15, 2010. control Bank of Salem, Salem, Arkansas, PLACE: The United States Department of and Security Bank, Stephens, Arkansas. PLACE: 4th Floor Conference Room, Labor Auditorium, Frances Perkins 1250 H Street, NW., Washington, DC Building, 200 Constitution Avenue, Board of Governors of the Federal Reserve 20005. System, March 4, 2010. NW., Washington, DC. STATUS: Parts will be open to the public STATUS: Open. Robert deV. Frierson, and parts closed to the public. MATTERS TO BE CONSIDERED: The Deputy Secretary of the Board. MATTERS TO BE CONSIDERED Commission will hear oral argument in [FR Doc. 2010–4970 Filed 3–8–10; 8:45 am] Parts Open to the Public the matter Secretary of Labor v. Eastern BILLING CODE 6210–01–S Associated Coal Corporation, Docket 1. Approval of the minutes of the No. WEVA 2007–335. (Issues include February 16, 2010, Board member whether certain violations of roof FEDERAL RESERVE SYSTEM meeting. control requirements constituted an 2. Thrift Savings Plan activity report ‘‘unwarrantable failure to comply.’’) Sunshine Act Meeting by the Executive Director. Any person attending this oral a. Monthly Participant Activity argument who requires special AGENCY HOLDING THE MEETING: Board of Report. accessibility features and/or auxiliary Governors of the Federal Reserve b. Monthly Investment Performance aids, such as sign language interpreters, System. Report. c. Legislative Report. must inform the Commission in advance TIME AND DATE: 12 p.m., Monday, March of those needs. Subject to 29 CFR 15, 2010. Parts Closed to the Public 2706.150(a)(3) and 2706.160(d). 3. Proprietary Data. CONTACT PERSON FOR MORE INFORMATION: PLACE: Marriner S. Eccles Federal 4. Proprietary Data. Jean Ellen (202) 434–9950/(202) 708– Reserve Board Building, 20th and C 9300 for TDD Relay/1–800–877–8339 Streets, N.W., Washington, D.C. 20551. CONTACT PERSON FOR MORE INFORMATION: Thomas J. Trabucco, Director, Office of for toll free. STATUS: Closed. External Affairs, (202) 942–1640. Jean H. Ellen, MATTERS TO BE CONSIDERED: Dated: March 4, 2010. Chief Docket Clerk. 1. Personnel actions (appointments, Thomas K. Emswiler, [FR Doc. 2010–5090 Filed 3–5–10; 4:15 pm] promotions, assignments, Secretary, Federal Retirement Thrift BILLING CODE 6735–01–P reassignments, and salary actions) Investment Board. involving individual Federal Reserve [FR Doc. 2010–5049 Filed 3–5–10; 11:15 am] System employees. BILLING CODE 6760–01–P FEDERAL RESERVE SYSTEM 2. Any items carried forward from a previously announced meeting. Change in Bank Control Notices; FEDERAL TRADE COMMISSION Acquisition of Shares of Bank or Bank FOR FURTHER INFORMATION CONTACT: Holding Companies Michelle Smith, Director, or Dave [File No. 091 0133] Skidmore, Assistant to the Board, Office The notificants listed below have PepsiCo, Inc.; Analysis of Agreement applied under the Change in Bank of Board Members at 202–452–2955. Containing Consent Order To Aid Control Act (12 U.S.C. 1817(j)) and SUPPLEMENTARY INFORMATION: You may Public Comment § 225.41 of the Board’s Regulation Y (12 call 202–452–3206 beginning at AGENCY: Federal Trade Commission. CFR 225.41) to acquire a bank or bank approximately 5 p.m. two business days ACTION: Proposed Consent Agreement. holding company. The factors that are before the meeting for a recorded considered in acting on the notices are announcement of bank and bank SUMMARY: The consent agreement in this set forth in paragraph 7 of the Act (12 holding company applications matter settles alleged violations of U.S.C. 1817(j)(7)). scheduled for the meeting; or you may federal law prohibiting unfair or The notices are available for contact the Board’s Web site at http:// deceptive acts or practices or unfair immediate inspection at the Federal www.federalreserve.gov for an electronic methods of competition. The attached Reserve Bank indicated. The notices announcement that not only lists Analysis to Aid Public Comment also will be available for inspection at applications, but also indicates describes both the allegations in the the office of the Board of Governors. procedural and other information about draft complaint and the terms of the Interested persons may express their the meeting. consent order—embodied in the consent views in writing to the Reserve Bank agreement—that would settle these Board of Governors of the Federal Reserve indicated for that notice or to the offices allegations. of the Board of Governors. Comments System, March 5, 2010. must be received not later than March Robert deV. Frierson, DATES: Comments must be received on or before March 26, 2010. 22, 2010. Deputy Secretary of the Board. ADDRESSES: A. Federal Reserve Bank of St. Louis [FR Doc. 2010–5106 Filed 3–5–10; 4:15 pm] Interested parties are (Glenda Wilson, Community Affairs invited to submit written comments Officer) 411 Locust Street, St. Louis, BILLING CODE 6210–01–S electronically or in paper form. Missouri 63166-2034: Comments should refer to ‘‘PepsiCo, File

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No. 091 0133’’ to facilitate the on the envelope, and should be mailed Public comments are invited, and may organization of comments. Please note or delivered to the following address: be filed with the Commission in either that your comment—including your Federal Trade Commission, Office of the paper or electronic form. All comments name and your state—will be placed on Secretary, Room H-135 (Annex D), 600 should be filed as prescribed in the the public record of this proceeding, Pennsylvania Avenue, NW, Washington, ADDRESSES section above, and must be including on the publicly accessible DC 20580. The FTC is requesting that received on or before the date specified FTC website, at (http://www.ftc.gov/os/ any comment filed in paper form be sent in the DATES section. publiccomments.shtm). by courier or overnight service, if Analysis of Agreement Containing Because comments will be made possible, because U.S. postal mail in the Consent Order to Aid Public Comment public, they should not include any Washington area and at the Commission sensitive personal information, such as is subject to delay due to heightened I. Introduction an individual’s Social Security Number; security precautions. The Federal Trade Commission date of birth; driver’s license number or The Federal Trade Commission Act (‘‘Commission’’) has accepted, subject to other state identification number, or (‘‘FTC Act’’) and other laws the final approval, an Agreement foreign country equivalent; passport Commission administers permit the Containing Consent Order from number; financial account number; or collection of public comments to Respondent PepsiCo, Inc. (‘‘PepsiCo’’), to credit or debit card number. Comments consider and use in this proceeding as address concerns in connection with also should not include any sensitive appropriate. The Commission will PepsiCo’s acquisitions of two of its health information, such as medical consider all timely and responsive bottlers and the subsequent exclusive records or other individually public comments that it receives, license from Group, identifiable health information. In whether filed in paper or electronic Inc. (‘‘DPSG’’), to bottle, distribute and addition, comments should not include form. Comments received will be sell the Dr Pepper, , and ‘‘ any [t]rade secret or any commercial or available to the public on the FTC carbonated brands financial information which is obtained website, to the extent practicable, at of DPSG in certain territories. The from any person and which is privileged (http://www.ftc.gov/os/ Consent Agreement requires, among ’’ or confidential...., as provided in publiccomments.shtm). As a matter of other things, that PepsiCo limit the Section 6(f) of the FTC Act, 15 U.S.C. discretion, the Commission makes every persons within the company who have 46(f), and Commission Rule 4.10(a)(2), effort to remove home contact access to commercially sensitive 16 CFR 4.10(a)(2). Comments containing information for individuals from the confidential information that DPSG will material for which confidential public comments it receives before provide to PepsiCo to enable PepsiCo to treatment is requested must be filed in placing those comments on the FTC carry out the distribution functions paper form, must be clearly labeled website. More information, including contemplated by the license. ‘‘Confidential,’’ and must comply with routine uses permitted by the Privacy The DPSG - PepsiCo license 1 FTC Rule 4.9(c), 16 CFR 4.9(c). Act, may be found in the FTC’s privacy agreement followed PepsiCo’s Because paper mail addressed to the policy, at (http://www.ftc.gov/ftc/ announced proposed acquisitions of its FTC is subject to delay due to privacy.shtm). two largest bottler-distributors, heightened security screening, please Bottling Group, Inc. (‘‘PBG’’), and FOR FURTHER INFORMATION CONTACT: Joan consider submitting your comments in PepsiAmericas, Inc. (‘‘PAS’’). These two Heim (202-326-2014) or Joseph S. electronic form. Comments filed in bottler-distributors had been licensed by Brownman (202-326-2605), Bureau of electronic form should be submitted by PepsiCo and by DPSG to bottle and Competition, 600 Pennsylvania Avenue, using the following weblink: (https:// distribute many of their carbonated soft NW, Washington, D.C. 20580. public.commentworks.com/ftc/pepsico) drink brands. Following the and following the instructions on the SUPPLEMENTARY INFORMATION: Pursuant acquisitions, PepsiCo will take on the web-based form. To ensure that the to section 6(f) of the Federal Trade bottling and distribution functions Commission considers an electronic Commission Act, 38 Stat. 721, 15 U.S.C. previously performed by PBG and PAS. comment, you must file it on the web- 46(f), and § 2.34 the Commission Rules The Complaint alleges that, as a result based form at the weblink: (https:// of Practice, 16 CFR 2.34, notice is of PepsiCo’s acquisition of PBG and public.commentworks.com/ftc/pepsico). hereby given that the above-captioned PAS, PepsiCo will have access to If this Notice appears at (http:// consent agreement containing a consent DPSG’s commercially sensitive www.regulations.gov/search/index.jsp), order to cease and desist, having been confidential marketing and brand plans. you may also file an electronic comment filed with and accepted, subject to final Without adequate safeguards, PepsiCo through that website. The Commission approval, by the Commission, has been could misuse that information, leading will consider all comments that placed on the public record for a period to anticompetitive conduct that would regulations.gov forwards to it. You may of thirty (30) days. The following make DPSG a less effective competitor also visit the FTC website at (http:// Analysis to Aid Public Comment or would facilitate coordination in the www.ftc.gov/) to read the Notice and the describes the terms of the consent industry. To remedy this problem, the news release describing it. agreement, and the allegations in the proposed Consent Agreement allows A comment filed in paper form complaint. An electronic copy of the only PepsiCo employees who perform should include the ‘‘PepsiCo, File No. full text of the consent agreement traditional carbonated soft drink ‘‘bottler 091 0133’’ reference both in the text and package can be obtained from the FTC functions’’ access to the DPSG Home Page (for February 26, 2010), on commercially sensitive information. It 1 The comment must be accompanied by an explicit request for confidential treatment, the World Wide Web, at (http:// prohibits PepsiCo employees involved including the factual and legal basis for the request, www.ftc.gov/os/actions.shtm). A paper in traditional ‘‘concentrate-related and must identify the specific portions of the copy can be obtained from the FTC functions’’ from seeing that information. comment to be withheld from the public record. Public Reference Room, Room 130-H, The request will be granted or denied by the II. Respondent PepsiCo, Inc. Commission’s General Counsel, consistent with 600 Pennsylvania Avenue, NW, applicable law and the public interest. See FTC Washington, D.C. 20580, either in PepsiCo is a corporation organized, Rule 4.9(c), 16 CFR 4.9(c). person or by calling (202) 326-2222. existing, and doing business under and

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by virtue of the laws of the State of soft drinks include all or a portion of 41 to produce2 and an exclusive, twenty- North Carolina, with its office and states and the District of Columbia. year3 license to distribute and sell those principal place of business located at brands. B. PepsiAmericas, Inc 700 Anderson Hill Road, Purchase, New Under the license agreement, PepsiCo York 10577. PepsiCo in 2009 had total PAS is a corporation organized, has agreed, among other things, to (a) worldwide revenues from the sale of all existing and doing business under and distribute the Dr Pepper brand in all products of about $43 billion. PepsiCo’s by virtue of the laws of the State of classes of trade based on the Pepsi United States sales in 2009 of Delaware, with its office and principal brands; (b) grow the Dr Pepper brand carbonated soft drink concentrate place of business located at 4000 RBC based on the sales of other carbonated totaled about $3 billion. United States Plaza, 60 South Sixth Street, soft drink brands; (c) promote the DPSG sales of all of PepsiCo’s carbonated soft Minneapolis, Minnesota 55402. PAS is beverages and provide sales support for drink brands are over $20 billion. the nation’s second largest bottler and such promotions, based on PepsiCo’s PepsiCo is a food and beverage distributor of PepsiCo beverages. PAS’s promotions of its other soft drink company that includes PepsiCo United States sales in 2009 of beverages, and (d) in connection with Americas Beverages (a beverage arm), carbonated soft drinks totaled about price-off promotions and media Frito-Lay (a snack food arm), and $2.5 billion. PAS accounts for about advertising, promote and advertise the Quaker Foods (a cereal arm). Among 19% of PepsiCo’s total U.S. bottler- Dr Pepper brand based on rates of other products, PepsiCo produces the distributed volume of carbonated soft promotion and advertising of the concentrate for the PepsiCo carbonated drinks. PAS is the bottler-distributor for PepsiCo brands. soft drink beverage brands that are many PepsiCo and DPSG carbonated VI. The Proposed Complaint distributed by its bottlers. Some of those soft drink brands. The principal brands are Pepsi-Cola, Diet Pepsi, geographic areas or territories in which The Commission’s Complaint alleges Mountain Dew, Diet Mountain Dew, PAS is licensed to distribute PepsiCo that PepsiCo and DPSG are direct Sierra Mist, Slice, and Mug . brand carbonated soft drinks include all competitors in the highly concentrated and difficult to enter markets for (a) III. Licensor , or a portion of 19 states, primarily in the Midwest. branded concentrate and (b) branded Inc. and direct-store-door delivered DPSG is a corporation organized, V. The Two Transactions carbonated soft drinks. The concentrate markets are both national and local, and existing and doing business under and A. The Bottler Acquisitions by virtue of the laws of the State of the branded carbonated soft drink Delaware, with its office and principal On August 3, 2009, PepsiCo entered markets are local. Total United States place of business located at 5301 Legacy into agreements with PBG and PAS, the sales of concentrate are about $9 billion, Drive, Plano, Texas 75024. Among other two largest independent bottlers and and total United States sales of things, DPSG produces the concentrate distributors of its carbonated soft drink carbonated soft drinks, measured at for the DPSG carbonated soft drink brands, to acquire all of their remaining retail, are about $70 billion. brands that are distributed by its outstanding voting securities. The total By acquiring PBG and PAS, PepsiCo bottlers. Some of those brands are Dr value of the acquired shares for both will be bottling and distributing both its Pepper, Diet Dr Pepper, Crush, bottlers would be approximately $7.8 own products and those of its Schweppes, , Vernor’s, A&W billion. At the time of the agreements, competitor DPSG. Concentrate Root Beer, 7-UP, Hires Root Beer, IBC, PepsiCo owned about 40% of PBG and manufacturers like DPSG share RC Cola, , Welch’s Grape Soda, about 43% of PAS. Together, PBG and commercially sensitive information , and . DPSG in 2009 had PAS have been responsible for about with bottlers so that bottlers can total revenues of about $6 billion. 75% of all United States bottler- effectively carry out their DPSG’s United States sales in 2009 of distributed sales of PepsiCo carbonated responsibilities; DPSG currently carbonated soft drink concentrate soft drink brands and about 20% of all provides this sort of information to PBG totaled about $1.5 billion. United States bottler-distributed sales of and PAS. As DPSG’s bottler, PepsiCo DPSG carbonated soft drink brands. will need this type of information. IV. The Bottlers At the same time, Pepsico remains a A. Pepsi Bottling Group, Inc. B. The DPSG-PepsiCo License competitor of DPSG. PepsiCo could use Agreement the information in ways that undermine PBG is a corporation organized, competition. The Complaint alleges that Following the agreements to acquire existing and doing business under and PepsiCo’s access to DPSG’s confidential PBG and PAS, PepsiCo sought a license by virtue of the laws of the State of information could eliminate to continue to bottle and distribute the Delaware, with its office and principal competition between PepsiCo and DPSG brands that the bottling place of business located at One Pepsi DPSG, increase the likelihood that companies had distributed. (The DPSG Way, Somers, New York 10589. PBG is PepsiCo may unilaterally exercise licenses held by PBG and PAS were the nation’s largest bottler and market power, and facilitate coordinated terminated by DPSG as a result of the distributor of PepsiCo beverages and interaction in the industry. In turn, that proposed acquisitions.) In the DPSG- accounts for about 56% of PepsiCo’s conduct could lead to higher prices for PepsiCo license agreement, dated total U.S. bottler-distributed volume of consumers. carbonated soft drink beverages. PBG’s December 7, 2009, PepsiCo agreed to bottle and distribute DPSG’s Dr Pepper, United States sales in 2009 of 2 The production right is not exclusive to allow carbonated soft drinks totaled about $6 Crush, and Schweppes carbonated soft DPSG to produce carbonated soft drinks in the billion. PBG is the bottler-distributor for drink brands in the former PBG and former PBG and PAS territories for sale by DPSG many PepsiCo and DPSG carbonated PAS territories, where those bottlers had outside those territories. been producing and distributing those 3 The license agreement is for an initial term of soft drink brands. The geographic areas twenty (20) years, with automatic renewal for or territories in which PBG is licensed products. PepsiCo agreed to pay DPSG additional twenty (20) year periods, unless to distribute PepsiCo brand carbonated $900 million for a non-exclusive license terminated pursuant its terms.

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VII. The Proposed Consent Order FEDERAL TRADE COMMISSION Because paper mail addressed to the FTC is subject to delay due to To remedy the alleged competitive [File No. 072 3165] heightened security screening, please concern associated with access to the consider submitting your comments in DPSG commercially sensitive Richard J. Stanton; Analysis of electronic form. Comments filed in confidential information, the consent Proposed Consent Order to Aid Public electronic form should be submitted by decree prevents that information from Comment using the following weblink: (https:// reaching PepsiCo employees who could AGENCY: Federal Trade Commission. public.commentworks.com/ftc/ use it to either harm DPSG or to richardjstanton) and following the ACTION: Proposed Consent Agreement. facilitate collusion. PepsiCo must set up instructions on the web-based form. To a firewall to prevent persons responsible SUMMARY: The consent agreement in this ensure that the Commission considers for ‘‘concentrate-related functions’’ – the matter settles alleged violations of an electronic comment, you must file it kinds of functions in which PepsiCo federal law prohibiting unfair or on the web-based form at the weblink: engaged as a competitor of DPSG when deceptive acts or practices or unfair (https://public.commentworks.com/ftc/ both had their brands distributed by methods of competition. The attached richardjstanton). If this Notice appears PBG and PAS – from access to the DPSG Analysis to Aid Public Comment at (http://www.regulations.gov/search/ information. Persons at PepsiCo who are describes both the allegations in the index.jsp), you may also file an assigned to perform traditional ‘‘bottler draft complaint and the terms of the electronic comment through that functions’’ – the kinds of functions that consent order — embodied in the website. The Commission will consider PBG and PAS historically have consent agreement — that would settle all comments that regulations.gov performed for DPSG – will be permitted these allegations. forwards to it. You may also visit the access to that information. FTC website at (http://www.ftc.gov/) to DATES: Comments must be received on The proposed Consent Agreement read the Notice and the news release or before March 29, 2010. also provides for the appointment of a describing it. monitor to assure PepsiCo’s compliance ADDRESSES: Interested parties are A comment filed in paper form with the Consent Agreement. The invited to submit written comments should include the ‘‘Richard J. Stanton, monitor will have a fiduciary electronically or in paper form. File No. 072 3165’’ reference both in the responsibility to the Commission. The Comments should refer to ‘‘Richard J. text and on the envelope, and should be monitor will be appointed for a five (5) Stanton, File No. 072 3165’’ to facilitate mailed or delivered to the following year term, but the Commission may the organization of comments. Please address: Federal Trade Commission, extend or modify the term as note that your comment — including Office of the Secretary, Room H-135 appropriate. your name and your state — will be (Annex D), 600 Pennsylvania Avenue, placed on the public record of this The order, like the DPSG-Pepsi NW, Washington, DC 20580. The FTC is proceeding, including on the publicly license agreement, will have a term of requesting that any comment filed in accessible FTC website, at (http:// twenty (20) years. paper form be sent by courier or www.ftc.gov/os/publiccomments.shtm). overnight service, if possible, because VIII. Opportunity for Public Comment Because comments will be made U.S. postal mail in the Washington area public, they should not include any and at the Commission is subject to The Consent Agreement has been sensitive personal information, such as delay due to heightened security placed on the public record for thirty an individual’s Social Security Number; precautions. (30) days for receipt of comments from date of birth; driver’s license number or The Federal Trade Commission Act interested persons. Comments received other state identification number, or (‘‘FTC Act’’) and other laws the during this period will become part of foreign country equivalent; passport Commission administers permit the the public record. After thirty days, the number; financial account number; or collection of public comments to Commission will again review the credit or debit card number. Comments consider and use in this proceeding as proposed Consent Agreement, as well as also should not include any sensitive appropriate. The Commission will the comments received, and will decide health information, such as medical consider all timely and responsive whether it should withdraw from the records or other individually public comments that it receives, Consent Agreement or make final the identifiable health information. In whether filed in paper or electronic Decision and Order. addition, comments should not include form. Comments received will be By accepting the Consent Agreement any ‘‘[t]rade secret or any commercial or available to the public on the FTC subject to final approval, the financial information which is obtained website, to the extent practicable, at Commission anticipates that the from any person and which is privileged (http://www.ftc.gov/os/ competitive problem alleged in the or confidential....,’’ as provided in publiccomments.shtm). As a matter of Complaint will be resolved. The Section 6(f) of the FTC Act, 15 U.S.C. discretion, the Commission makes every purpose of this analysis is to invite and 46(f), and Commission Rule 4.10(a)(2), effort to remove home contact facilitate public comment concerning 16 CFR 4.10(a)(2). Comments containing information for individuals from the the Consent Agreement. It is not material for which confidential public comments it receives before intended to constitute an official treatment is requested must be filed in placing those comments on the FTC interpretation of the proposed Consent paper form, must be clearly labeled website. More information, including Agreement, nor is it intended to modify ‘‘Confidential,’’ and must comply with routine uses permitted by the Privacy the terms of the Decision and Order in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Act, may be found in the FTC’s privacy any way. policy, at (http://www.ftc.gov/ftc/ By direction of the Commission. 1 The comment must be accompanied by an privacy.shtm). explicit request for confidential treatment, FOR FURTHER INFORMATION CONTACT: Donald S. Clark, including the factual and legal basis for the request, Laura Berger (202-326-2471), Bureau of Secretary. and must identify the specific portions of the comment to be withheld from the public record. [FR Doc. 2010–4894 Filed 3–8–10; 11:48 am] The request will be granted or denied by the applicable law and the public interest. See FTC BILLING CODE 6750–01–S Commission’s General Counsel, consistent with Rule 4.9(c), 16 CFR 4.9(c).

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