Meetings To Implement Pandemic Response Voluntary Agreement Under Section 708 of the Defense Production Act, 53974-53975 [2021-21192]

Agencies

• Federal Emergency Management Agency
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Notices]
[Pages 53974-53975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21192]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2020-0016]


Meetings To Implement Pandemic Response Voluntary Agreement Under 
Section 708 of the Defense Production Act

AGENCY: Federal Emergency Management Agency, Department of Homeland 
Security.

ACTION: Announcement of meetings.

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SUMMARY: The Federal Emergency Management Agency (FEMA) held two 
meetings to implement the Voluntary Agreement for the Manufacture and 
Distribution of Critical Healthcare Resources Necessary to Respond to a 
Pandemic.

DATES: The first meeting took place on Tuesday, September 21, 2021, 
from 10 a.m. to 12 p.m. Eastern Time (ET). The second meeting took 
place on Thursday, September 23, 2021, from 10 a.m. to 12 p.m. ET.

FOR FURTHER INFORMATION CONTACT: Robert Glenn, Office of Business, 
Industry, Infrastructure Integration, via email at [email protected] or 
via phone at (202) 212-1666.

SUPPLEMENTARY INFORMATION: Notice of these meetings is provided as 
required by section 708(h)(8) of the Defense Production Act (DPA), 50 
U.S.C. 4558(h)(8), and consistent with 44 CFR part 332.
    The DPA authorizes the making of ``voluntary agreements and plans 
of action'' with representatives of industry, business, and other 
interests to help provide for the national defense.\1\ The President's 
authority to facilitate voluntary agreements with respect to responding 
to the spread of COVID-19 within the United States was delegated to the 
Secretary of Homeland Security in Executive Order 13911.\2\ The 
Secretary of Homeland Security further delegated this authority to the 
FEMA Administrator.\3\
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    \1\ 50 U.S.C. 4558(c)(1).
    \2\ 85 FR 18403 (Apr. 1, 2020).
    \3\ DHS Delegation 09052, Rev. 00.1 (Apr. 1, 2020); DHS 
Delegation Number 09052 Rev. 00 (Jan. 3, 2017).
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    On August 17, 2020, after the appropriate consultations with the 
Attorney General and the Chairman of the Federal Trade Commission, FEMA 
completed and published in the Federal Register a ``Voluntary 
Agreement, Manufacture and Distribution of Critical Healthcare 
Resources Necessary to

[[Page 53975]]

Respond to a Pandemic'' (Voluntary Agreement).\4\ Unless terminated 
earlier, the Voluntary Agreement is effective until August 17, 2025, 
and may be extended subject to additional approval by the Attorney 
General after consultation with the Chairman of the Federal Trade 
Commission. The Agreement may be used to prepare for or respond to any 
pandemic, including COVID-19, during that time.
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    \4\ 85 FR 50035 (Aug. 17, 2020). The Attorney General, in 
consultation with the Chairman of the Federal Trade Commission, made 
the required finding that the purpose of the voluntary agreement may 
not reasonably be achieved through an agreement having less 
anticompetitive effects or without any voluntary agreement and 
published the finding in the Federal Register on the same day. 85 FR 
50049 (Aug. 17, 2020).
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    On December 7, 2020, the first plan of action under the Voluntary 
Agreement--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 (PPE Plan of Action)--was 
finalized.\5\ The PPE Plan of Action established several sub-committees 
under the Voluntary Agreement, focusing on different aspects of the PPE 
Plan of Action.
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    \5\ See 85 FR 78869 (Dec. 7, 2020). See also 85 FR 79020 (Dec. 
8, 2020).
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    On May 24, 2021, four additional plans of action under the 
Voluntary Agreement--the Plan of Action to Establish a National 
Strategy for the Manufacture, Allocation, and Distribution of 
Diagnostic Test Kits and other Testing Components to respond to COVID-
19, the Plan of Action to Establish a National Strategy for the 
Manufacture, Allocation, and Distribution of Drug Products, Drug 
Substances, and Associated Medical Devices to respond to COVID-19, the 
Plan of Action to Establish a National Strategy for the Manufacture, 
Allocation, and Distribution of Medical Devices to respond to COVID-19, 
and the Plan of Action to Establish a National Strategy for the 
Manufacture, Allocation, and Distribution of Medical Gases to respond 
to COVID-19--were finalized.\6\ These plans of action established 
several sub-committees under the Voluntary Agreement, focusing on 
different aspects of each plan of action.
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    \6\ See 86 FR 27894 (May 24, 2021). See also 86 FR 28851 (May 
28, 2021).
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    The meetings were chaired by the FEMA Administrator or her delegate 
and attended by the Attorney General and the Chairman of the Federal 
Trade Commission or their delegates. In implementing the Voluntary 
Agreement, FEMA adheres to all procedural requirements of 50 U.S.C. 
4558 and 44 CFR part 332.
    Meeting Objectives: The objectives of the meetings were as follows:
    1. Gather committee Participants and Attendees to ask targeted 
questions for situational awareness related to the active Plans of 
Action (PPE, Drug Products and Drug Substances, Diagnostic Test Kits, 
Medical Devices, and Medical Gases).
    2. Establish priorities for COVID-19 response under the Voluntary 
Agreement.
    3. Identify tasks that should be completed under the appropriate 
Sub-Committee.
    4. Identify information gaps and areas that merit sharing (both 
from FEMA to the private sector and vice versa).
    Meetings Closed to the Public: By default, the DPA requires 
meetings held to implement a voluntary agreement or plan of action be 
open to the public.\7\ However, attendance may be limited if the 
Sponsor \8\ of the voluntary agreement finds that the matter to be 
discussed at a meeting falls within the purview of matters described in 
5 U.S.C. 552b(c), such as trade secrets and commercial or financial 
information. The Sponsor of the Voluntary Agreement, the FEMA 
Administrator, found that these meetings to implement the Voluntary 
Agreement involved matters which fall within the purview of matters 
described in 5 U.S.C. 552b(c) and the meetings were therefore closed to 
the public.
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    \7\ See 50 U.S.C. 4558(h)(7).
    \8\ ``[T]he individual designated by the President in subsection 
(c)(2) [of section 708 of the DPA] to administer the voluntary 
agreement, or plan of action.'' 50 U.S.C. 4558(h)(7).
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    Specifically, these meetings to implement the Voluntary Agreement 
may have required participants to disclose trade secrets or commercial 
or financial information that is privileged or confidential. Disclosure 
of such information allows for meetings to be closed pursuant to 5 
U.S.C. 552b(c)(4). In addition, the success of the Voluntary Agreement 
depends wholly on the willing and enthusiastic participation of private 
sector participants. Failure to close these meetings could have had a 
strong chilling effect on private sector participation and caused a 
substantial risk that sensitive information would be prematurely 
released to the public, leading to participants withdrawing their 
support from the Voluntary Agreement.
    This would have significantly frustrated the implementation of the 
Voluntary Agreement. Frustration of an agency's objective due to 
premature disclosure of information allows for the closure of a meeting 
pursuant to 5 U.S.C. 552b(c)(9)(B).

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-21192 Filed 9-28-21; 8:45 am]
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