[Federal Register Volume 85, Number 247 (Wednesday, December 23, 2020)]
[Notices]
[Pages 83985-83986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28373]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2020-0016]


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

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Announcement of meeting.

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SUMMARY: The Federal Emergency Management Agency (FEMA) held a series 
of meetings remotely via web conference 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 Monday, December 14, 2020, from 
2 to 4 p.m. Eastern Time (ET). The second meeting took place on 
Wednesday, December 16, 2020, from 2 to 4 p.m. ET. The third meeting 
took place on Friday, December 18, 2020, from 11 a.m. to 1 p.m. ET.

FOR FURTHER INFORMATION CONTACT: Robert Glenn, Office of Business, 
Industry, Infrastructure Integration, via email at OB3I@fema.dhs.gov 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, among others, representatives of industry and 
business to help provide for the national defense.\1\ The President's 
authority to facilitate voluntary agreements was delegated to the 
Secretary of Homeland Security with respect to responding to the spread 
of COVID-19 within the United States in Executive Order 13911.\2\ The 
Secretary of Homeland Security has 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 
for the Manufacture and Distribution of Critical Healthcare Resources 
Necessary to Respond to a Pandemic'' (Voluntary Agreement).\4\ Unless 
terminated prior to that date, 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 (Plan of Action)--was 
finalized.\5\ The Plan of Action established the Personal Protective 
Equipment Sub-Committee to Define COVID-19 PPE Requirements (Sub-
Committee).
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    \5\ See 85 FR 78869 (Dec. 7, 2020). See also 85 FR 79020 (Dec. 
8, 2020).
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    The meetings covered by this notice were held by the Sub-Committee 
to implement the Voluntary Agreement. The meetings were chaired by the 
FEMA Administrator or his delegate, and attended by the Attorney 
General or his delegate and the Chairman of the Federal Trade 
Commission or his delegate. 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 to:
    (1) Establish priorities for COVID-19 PPE under the Voluntary 
Agreement;
    (2) Identify the first tasks that should be completed under the 
Plan of Action;
    (3) Identify information gaps and areas that merit sharing (from 
both FEMA to private sector and vice versa); and

[[Page 83986]]

    (4) Identify additional Participants that should be a part of the 
Voluntary Agreement and Plan of Action.
    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.\6\ However, attendance may be limited if the 
Sponsor \7\ 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). The Sponsor of the Voluntary Agreement, the FEMA 
Administrator, found that these meetings to implement the Voluntary 
Agreement involved matters which fell within the purview of matters 
described in 5 U.S.C. 552b(c) and were therefore closed to the 
public.\8\
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    \6\ See 50 U.S.C. 4558(h)(7).
    \7\ ``[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).
    \8\ Under 50 U.S.C. 4558(h)(8), the Sponsor generally must 
publish in the Federal Register prior notice of any meeting held to 
carry out a voluntary agreement or plan of action. However, when the 
Sponsor finds that the matters to be discussed at such meeting fall 
within the purview of matters described in 5 U.S.C. 552b(c), notice 
of the meeting may instead be published in the Federal Register 
within ten days of the date of the meeting. See 50 U.S.C. 
4558(h)(8).
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    Specifically, the meetings to implement the Voluntary Agreement 
could 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 participation by 
the private sector and caused a substantial risk that sensitive 
information would be prematurely released to the public, resulting in 
participants withdrawing their support from the Voluntary Agreement and 
thus significantly frustrating 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 to 
pursuant to 5 U.S.C. 552b(c)(9)(B).

Pete Gaynor,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2020-28373 Filed 12-22-20; 8:45 am]
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