[Federal Register Volume 85, Number 235 (Monday, December 7, 2020)]
[Notices]
[Pages 78869-78870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26848]


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DEPARTMENT OF JUSTICE

Antitrust Division


Notice Pursuant to the Defense Production Act of 1950

AGENCY: Antitrust Division, U.S. Department of Justice.

ACTION: Notice of review of plan of action.

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SUMMARY: Notice is hereby given pursuant to section 708 of the Defense 
Production Act of 1950 (``DPA''), that the Assistant Attorney General 
finds, with respect to the Plan of Action to Establish a National 
Strategy for the Manufacture, Allocation and Distribution of Personal 
Protective Equipment (PPE) to Respond to COVID-19 (``Plan of Action'') 
proposed by the Federal Emergency Management Agency (``FEMA''), that 
the purposes of section 708(c)(1) of the DPA may not reasonably be 
achieved through a plan of action having less anticompetitive effects 
or without any plan of action. Given this finding, the proposed Plan of 
Action may become effective following the publication of this notice.

SUPPLEMENTARY INFORMATION: Under the DPA, FEMA may enter into plans 
with representatives of private industry for the purpose of improving 
the efficiency with which private firms contribute to the national 
defense when conditions exist that may pose a direct threat to the 
national defense or its preparedness. Such arrangements are generally 
known as ``voluntary agreements.'' Participants in an existing 
voluntary agreement may adopt documented methods, known as

[[Page 78870]]

``plans of action,'' to implement that voluntary agreement. A defense 
to actions brought under the antitrust laws is available to each 
participant acting within the scope of a voluntary agreement and plan 
of action that has come into force under the DPA.
    The DPA requires that each proposed plan of action be reviewed by 
the Attorney General prior to becoming effective. If, after consulting 
with the Chairman of the Federal Trade Commission, the Attorney General 
finds that the purposes of the DPA's plans of action provision ``may 
not reasonably be achieved through a . . . plan of action having less 
anticompetitive effects or without any . . . plan of action,'' the plan 
of action may become effective. 50 U.S.C. 4558(f)(1)(B). All functions 
which the Attorney General is required or authorized to perform by 
section 708 of the DPA have been delegated to the Assistant Attorney 
General, Antitrust Division. 28 CFR. 0.40(l).
    On August 17, 2020, the Voluntary Agreement for the Manufacture and 
Distribution of Critical Healthcare Resources Necessary to Respond to a 
Pandemic (``Voluntary Agreement'') became effective. The proposed Plan 
of Action contains documented methods to implement the Voluntary 
Agreement by creating a mechanism to immediately meet exigent PPE 
requests anywhere in the Nation, and to ensure that actions to support 
PPE stockpiling and reserves do not interfere with immediate 
requirements that would result in an unacceptable risk to healthcare 
providers or other potential PPE recipients. This mechanism involves 
the establishment several Sub-Committees by PPE type, which are 
designed to foster a close working relationship among FEMA, the 
Department of Health and Human Services (``HHS''), and participants in 
the Sub-Committees to address national defense needs through 
cooperative action under the direction and active supervision of FEMA. 
The proposed Plan of Action includes terms, conditions and procedures 
under which participants agree voluntarily to participate in the Sub-
Committees. FEMA has certified that the proposed Plan of Action is 
necessary to provide for the national defense in the event of a 
pandemic.
    FEMA requested that the Assistant Attorney General, Antitrust 
Division, issue a finding that the proposed Plan of Action satisfies 
the statutory criteria set forth in 50 U.S.C. 4558(f)(1)(B). The 
Assistant Attorney General, Antitrust Division, reviewed the proposed 
Plan of Action and consulted on it with the Chairman of the Federal 
Trade Commission. On December 2, 2020, by letter to Peter Gaynor, FEMA 
Administrator, Makan Delrahim, Assistant Attorney General, Antitrust 
Division, issued a finding, pursuant to 50 U.S.C. 4558(f)(1)(B), that 
the purposes of the DPA's plans of action provision ``may not 
reasonably be achieved through a . . . plan of action having less 
anticompetitive effects or without any . . . plan of action.''

David G.B. Lawrence,
Chief, Competition Policy & Advocacy Section.
[FR Doc. 2020-26848 Filed 12-4-20; 8:45 am]
BILLING CODE 4410-11-P