[Federal Register Volume 86, Number 197 (Friday, October 15, 2021)]
[Notices]
[Page 57444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22508]


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DEPARTMENT OF JUSTICE

Antitrust Division


Notice Pursuant to the Defense Production Act of 1950

AGENCY: Antitrust Division, 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 Acting Assistant Attorney 
General finds, with respect to the Plan of Action to Establish a 
National Strategy for the Coordination of National Multimodal 
Healthcare Supply Chains 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 ``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 Chair 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 address exigent needs 
within the National Multimodal Healthcare Supply Chains System and to 
ensure actions to address such needs do not come with unacceptable 
risks or interfere with other efforts to meet critical End-User 
requirements. This mechanism involves the establishment of several Sub-
Committees by transportation type, which are designed to foster a close 
working relationship among FEMA, the Department of Health and Human 
Services (``HHS''), and participants of 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 Acting 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 Acting Assistant Attorney General, Antitrust Division, reviewed the 
proposed Plan of Action and consulted on it with the Chair of the 
Federal Trade Commission. On October 12, 2021, by letter to Deanne 
Criswell, FEMA Administrator, Richard Powers, Acting 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. 2021-22508 Filed 10-14-21; 8:45 am]
BILLING CODE 4410-11-P