50 U.S.C. § 4558 — Voluntary agreements and plans of action

Page 1133 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 (1) with respect to hoarding of health and medical resources necessary to respond to the spread of COVID–19 within the United States delegated to Sec- retary of Health and Human Services, see section 2(a)(ii) of Ex. Ord. 13910, Mar. 23, 2020, 85 F.R. 17001, set out as a note under section 4512 of this title; (2) with respect to responding to the spread of COVID–19 within the United States delegated to Sec- retary of Health and Human Services and Secretary of Homeland Security, see section 2(a) of Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a note under section 4511 of this title; and (3) in addition to the delegation of authority in Ex. Ord. No. 13911, delegated to Chief Executive Officer of the United States International Development Fi- nance Corporation, see section 2 of Ex. Ord. No. 13922, May 14, 2020, 85 F.R. 30583, set out as a note under sec- tion 4532 of this title. Functions of President under this chapter relating to production, conservation, use, control, distribution, and allocation of energy, delegated to Secretary of En- ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, 39 F.R. 23185, set out as a note under section 761 of Title 15, Commerce and Trade. § 4557. Liability for compliance with invalid reg- ulations; discrimination against orders or contracts affected by priorities or allocations No person shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this chapter, notwithstanding that any such rule, regulation, or order shall thereafter be declared by judicial or other competent authority to be invalid. No person shall discriminate against or- ders or contracts to which priority is assigned or for which materials or facilities are allocated under subchapter I of this chapter or under any rule, regulation, or order issued thereunder, by charging higher prices or by imposing different terms and conditions for such orders or con- tracts than for other generally comparable or- ders or contracts, or in any other manner. (Sept. 8, 1950, ch. 932, title VII, § 707, 64 Stat. 818; June 30, 1952, ch. 530, title I, § 118, 66 Stat. 306.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Production Act of 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 4501 of this title and Tables. CODIFICATION Section was formerly classified to section 2157 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. AMENDMENTS 1952—Act June 30, 1952, in first sentence struck out ‘‘his’’ before ‘‘compliance with’’. § 4558. Voluntary agreements and plans of action for preparedness programs and expansion of production capacity and supply (a) Immunity from civil and criminal liability or defense to action under antitrust laws; ex- ceptions Except as specifically provided in subsection (j) of this section, no provision of this chapter shall be deemed to convey to any person any im- munity from civil or criminal liability, or to create defenses to actions, under the antitrust laws. (b) Definitions For purposes of this chapter— (1) Antitrust laws The term ‘‘antitrust laws’’ has the meaning given to such term in subsection (a) of section 12 of title 15, except that such term includes section 45 of title 15 to the extent that such section 45 applies to unfair methods of com- petition. (2) Plan of action The term ‘‘plan of action’’ means any of 1 or more documented methods adopted by partici- pants in an existing voluntary agreement to implement that agreement. (c) Prerequisites for agreements and plans of ac- tion; delegation of authority to Presidential designees (1) Upon finding that conditions exist which may pose a direct threat to the national defense or its preparedness programs, the President may consult with representatives of industry, busi- ness, financing, agriculture, labor, and other in- terests in order to provide for the making by such persons, with the approval of the President, of voluntary agreements and plans of action to help provide for the national defense. (2) The authority granted to the President in paragraph (1) and subsection (d) may be dele- gated by him (A) to individuals who are ap- pointed by and with the advice and consent of the Senate, or are holding offices to which they have been appointed by and with the advice and consent of the Senate, (B) upon the condition that such individuals consult with the Attorney General and with the Federal Trade Commission not less than ten days before consulting with any persons under paragraph (1), and (C) upon the condition that such individuals obtain the prior approval of the Attorney General, after consultation by the Attorney General with the Federal Trade Commission, to consult under paragraph (1). (3) Upon a determination by the President, on a nondelegable basis, that a specific voluntary agreement or plan of action is necessary to meet national defense requirements resulting from an event that degrades or destroys critical infra- structure— (A) an individual that has been delegated au- thority under paragraph (1) with respect to such agreement or plan shall not be required to consult with the Attorney General or the Federal Trade Commission under paragraph (2)(B); and (B) the President shall publish a rule in ac- cordance with subsection (e)(2)(B) and publish notice in accordance with subsection (e)(3)(B) with respect to such agreement or plan as soon as is practicable under the circumstances. (d) Advisory committees; establishment; applica- ble provisions; membership; notice and par- ticipation in meetings; verbatim transcript; availability to public (1) To achieve the objectives of subsection (c)(1) of this section, the President or any indi- Page 1134 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 vidual designated pursuant to subsection (c)(2) may provide for the establishment of such advi- sory committees as he determines are necessary. In addition to the requirements specified in this section and except as provided in subsection (n), any such advisory committee shall be subject to the provisions of chapter 10 of title 5, whether or not such chapter or any of its provisions expire or terminate during the term of this chapter or of such committees, and in all cases such advi- sory committees shall be chaired by a Federal employee (other than an individual employed pursuant to section 3109 of title 5) and shall in- clude representatives of the public. The Attor- ney General and the Federal Trade Commission shall have adequate advance notice of any meet- ing and may have an official representative at- tend and participate in any such meeting. (2) A full and complete verbatim transcript shall be kept of such advisory committee meet- ings, and shall be taken and deposited, together with any agreement resulting therefrom, with the Attorney General and the Federal Trade Commission. Such transcript and agreement shall be made available for public inspection and copying, subject to the provisions of paragraphs (1), (3), and (4) of section 552(b) of title 5. (e) Rules; promulgation by Presidential des- ignees; consultation by Attorney General with Chairman of Federal Trade Commis- sion; approval of Attorney General; proce- dures; incorporation of standards and proce- dures for development of agreements and plans of action (1) The individual or individuals referred to in subsection (c)(2) shall, after approval of the At- torney General, after consultation by the Attor- ney General with the Chairman of the Federal Trade Commission, promulgate rules, in accord- ance with section 553 of title 5, incorporating standards and procedures by which voluntary agreements and plans of action may be devel- oped and carried out. (2) In addition to the requirements of section 553 of title 5— (A) general notice of the proposed rule- making referred to in paragraph (1) shall be published in the Federal Register, and such notice shall include— (i) a statement of the time, place, and na- ture of the proposed rulemaking pro- ceedings; (ii) reference to the legal authority under which the rule is being proposed; and (iii) either the terms of substance of the proposed rule or a description of the subjects and issues involved; (B) the required publication of a rule shall be made not less than thirty days before its ef- fective date; and (C) the individual or individuals referred to in paragraph (1) shall give interested persons the right to petition for the issuance, amend- ment, or repeal of a rule. (3) The rules promulgated pursuant to this subsection incorporating standards and proce- dures by which voluntary agreements may be developed shall provide, among other things, that— (A) such agreements shall be developed at meetings which include— (i) the Attorney General or his delegate, (ii) the Chairman of the Federal Trade Commission or his delegate, and (iii) an individual designated by the Presi- dent in subsection (c)(2) or his delegate, and which are chaired by the individual re- ferred to in clause (iii); (B) at least seven days prior to any such meeting, notice of the time, place, and nature of the meeting shall be published in the Fed- eral Register; (C) interested persons may submit written data and views concerning the proposed vol- untary agreement, with or without oppor- tunity for oral presentation; (D) interested persons may attend any such meeting unless the individual designated by the President in subsection (c)(2) finds that the matter or matters to be discussed at such meeting falls within the purview of matters described in section 552b(c) of title 5; (E) a full and verbatim transcript shall be made of any such meeting and shall be trans- mitted by the chairman of the meeting to the Attorney General and to the Chairman of the Federal Trade Commission; (F) any voluntary agreement resulting from the meetings shall be transmitted by the chairman of the meetings to the Attorney General, the Chairman of the Federal Trade Commission, and the Congress; and (G) any transcript referred to in subpara- graph (E) and any voluntary agreement re- ferred to in subparagraph (F) shall be avail- able for public inspection and copying, subject to paragraphs (1), (3), and (4) of section 552(b) of title 5. (f) Commencement of agreements and plans of action; expiration date; extensions (1) A voluntary agreement or plan of action may not become effective unless and until— (A) the individual referred to in subsection (c)(2) who is to administer the agreement or plan approves it and certifies, in writing, that the agreement or plan is necessary to carry out the purposes of subsection (c)(1) and sub- mits a copy of such agreement or plan to the Congress; and (B) the Attorney General (after consultation with the Chairman of the Federal Trade Com- mission) finds, in writing, that such purpose may not reasonably be achieved through a vol- untary agreement or plan of action having less anticompetitive effects or without any vol- untary agreement or plan of action and pub- lishes such finding in the Federal Register. (2) Each voluntary agreement or plan of action which becomes effective under paragraph (1) shall expire 5 years after the date it becomes ef- fective (and at 5-year intervals thereafter, as the case may be), unless (immediately prior to such expiration date) the individual referred to in subsection (c)(2) who administers the agreement or plan and the Attorney General (after con- sultation with the Chairman of the Federal Trade Commission) make the certification or finding, as the case may be, described in para- Page 1135 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 graph (1) with respect to such voluntary agree- ment or plan of action and publish such certifi- cation or finding in the Federal Register, in which case, the voluntary agreement or plan of action may be extended for an additional period of 5 years. (g) Monitoring of agreements and plans of action by Attorney General and Chairman of Fed- eral Trade Commission The Attorney General and the Chairman of the Federal Trade Commission shall monitor the carrying out of any voluntary agreement or plan of action to assure— (1) that the agreement or plan is carrying out the purposes of subsection (c)(1); (2) that the agreement or plan is being car- ried out under rules promulgated pursuant to subsection (e); (3) that the participants are acting in ac- cordance with the terms of the agreement or plan; and (4) the protection and fostering of competi- tion and the prevention of anticompetitive practices and effects. (h) Required provisions of rules for implementa- tion of agreements and plans of action The rules promulgated under subsection (e) with respect to the carrying out of voluntary agreements and plans of action shall provide— (1) for the maintenance, by participants in any voluntary agreement or plan of action, of documents, minutes of meetings, transcripts, records, and other data related to the carrying out of any voluntary agreement or plan of ac- tion; (2) that participants in any voluntary agree- ment or plan of action agree, in writing, to make available to the individual designated by the President in subsection (c)(2) to admin- ister the voluntary agreement or plan of ac- tion, the Attorney General and the Chairman of the Federal Trade Commission for inspec- tion and copying at reasonable times and upon reasonable notice any item maintained pursu- ant to paragraph (1); (3) that any item made available to the indi- vidual designated by the President in sub- section (c)(2) to administer the voluntary agreement or plan of action, the Attorney General, or the Chairman of the Federal Trade Commission pursuant to paragraph (2) shall be available from such individual, the Attorney General, or the Chairman of the Federal Trade Commission, as the case may be, for public in- spection and copying, subject to paragraph (1), (3), or (4) of section 552(b) of title 5; (4) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action, the Attorney General, and the Chairman of the Federal Trade Commission, or their delegates, may attend meetings to carry out any vol- untary agreement or plan of action; (5) that a Federal employee (other than an individual employed pursuant to section 3109 of title 5) shall attend meetings to carry out any voluntary agreement or plan of action; (6) that participants in any voluntary agree- ment or plan of action provide the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action, the Attorney General, and the Chairman of the Federal Trade Commis- sion with adequate prior notice of the time, place, and nature of any meeting to be held to carry out the voluntary agreement or plan of action; (7) for the attendance by interested persons of any meeting held to carry out any vol- untary agreement or plan of action, unless the individual designated by the President in sub- section (c)(2) to administer the voluntary agreement or plan of action finds that the matter or matters to be discussed at such meeting falls within the purview of matters described in section 552b(c) of title 5; (8) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action has published in the Federal Register prior notifi- cation of the time, place, and nature of any meeting held to carry out any voluntary agreement or plan of action, unless he finds that the matter or matters to be discussed at such meeting falls within the purview of mat- ters described in section 552b(c) of title 5, in which case, notification of the time, place, and nature of such meeting shall be published in the Federal Register within ten days of the date of such meeting; (9) that— (A) the Attorney General (after consulta- tion with the Chairman of the Federal Trade Commission and the individual designated by the President in subsection (c)(2) to ad- minister a voluntary agreement or plan of action), or (B) the individual designated by the Presi- dent in subsection (c)(2) to administer a vol- untary agreement or plan of action (after consultation with the Attorney General and the Chairman of the Federal Trade Commis- sion), may terminate or modify, in writing, the vol- untary agreement or plan of action at any time, and that effective, immediately upon such termination or modification, any anti- trust immunity conferred upon the partici- pants in the voluntary agreement or plan of action by subsection (j) shall not apply to any act or omission occurring after the time of such termination or modification; (10) that participants in any voluntary agreement or plan of action be reasonably rep- resentative of the appropriate industry or seg- ment of such industry; and (11) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action shall provide prior written notification of the time, place, and nature of any meeting to carry out a voluntary agreement or plan of ac- tion to the Attorney General, the Chairman of the Federal Trade Commission and the Con- gress. (i) Rules; promulgation by Attorney General and Chairman of Federal Trade Commission The Attorney General and the Chairman of the Federal Trade Commission shall each promul- gate such rules as each deems necessary or ap- Page 1136 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 propriate to carry out his responsibility under this section. (j) Defenses (1) In general Subject to paragraph (4), there shall be available as a defense for any person to any civil or criminal action brought under the antitrust laws (or any similar law of any State) with respect to any action taken to de- velop or carry out any voluntary agreement or plan of action under this section that— (A) such action was taken— (i) in the course of developing a vol- untary agreement initiated by the Presi- dent or a plan of action adopted under any such agreement; or (ii) to carry out a voluntary agreement initiated by the President and approved in accordance with this section or a plan of action adopted under any such agreement, and (B) such person— (i) complied with the requirements of this section and any regulation prescribed under this section; and (ii) acted in accordance with the terms of the voluntary agreement or plan of ac- tion. (2) Scope of defense Except in the case of actions taken to de- velop a voluntary agreement or plan of action, the defense established in paragraph (1) shall be available only if and to the extent that the person asserting the defense demonstrates that the action was specified in, or was within the scope of, an approved voluntary agreement initiated by the President and approved in ac- cordance with this section or a plan of action adopted under any such agreement and ap- proved in accordance with this section. The defense established in paragraph (1) shall not be available unless the President or the Presi- dent’s designee has authorized and actively su- pervised the voluntary agreement or plan of action. (3) Burden of persuasion Any person raising the defense established in paragraph (1) shall have the burden of proof to establish the elements of the defense. (4) Exception for actions taken to violate the antitrust laws The defense established in paragraph (1) shall not be available if the person against whom the defense is asserted shows that the action was taken for the purpose of violating the antitrust laws. (k) Surveys and studies by Attorney General and Federal Trade Commission; content; annual report to Congress and President by Attor- ney General The Attorney General and the Federal Trade Commission shall each make surveys for the purpose of determining any factors which may tend to eliminate competition, create or strengthen monopolies, injure small business, or otherwise promote undue concentration of eco- nomic power in the course of the administration of this section. Such surveys shall include stud- ies of the voluntary agreements and plans of ac- tion authorized by this section. The Attorney General shall (after consultation with the Fed- eral Trade Commission) submit to the Congress and the President at least once every year re- ports setting forth the results of such studies of voluntary agreements and plans of action. (l) Annual report to Congress and President by Presidential designees; contents The individual or individuals designated by the President in subsection (c)(2) shall submit to the Congress and the President at least once every year reports describing each voluntary agreement or plan of action in effect and its contribution to achievement of the purpose of subsection (c)(1). (m) Jurisdiction to enjoin statutory exemption or suspension and order for production of tran- scripts, etc.; procedures On complaint, the United States District Court for the District of Columbia shall have ju- risdiction to enjoin any exemption or suspension pursuant to subsections (d)(2), (e)(3)(D) and (G), and (h)(3), (7), and (8), and to order the produc- tion of transcripts, agreements, items, or other records maintained pursuant to this section by the Attorney General, the Federal Trade Com- mission or any individual designated under sub- section (c)(2), where the court determines that such transcripts, agreements, items, or other records have been improperly withheld from the complainant. In such a case the court shall de- termine the matter de novo, and may examine the contents of such transcripts, agreements, items, or other records in camera to determine whether such transcripts, agreements, items, or other records or any parts thereof shall be with- held under any of the exemption or suspension provisions referred to in this subsection, and the burden is on the Attorney General, the Federal Trade Commission, or such designated indi- vidual, as the case may be, to sustain its action. (n) Exemption from chapter 10 of title 5 Notwithstanding any other provision of law, chapter 10 of title 5 and any other provision of Federal law relating to advisory committees shall not apply to— (1) the consultations referred to in sub- section (c)(1); or (2) any activity conducted under a voluntary agreement or plan of action approved pursuant to this section that complies with the require- ments of this section. (o) Preemption of contract law in emergencies In any action in any Federal or State court for breach of contract, there shall be available as a defense that the alleged breach of contract was caused predominantly by action taken during an emergency to carry out a voluntary agreement or plan of action authorized and approved in ac- cordance with this section. Such defense shall not release the party asserting it from any obli- gation under applicable law to mitigate damages to the greatest extent possible. (Sept. 8, 1950, ch. 932, title VII, § 708, 64 Stat. 818; June 30, 1952, ch. 530, title I, § 116(c), 66 Stat. 305; Aug. 9, 1955, ch. 655, § 6, 69 Stat. 581; Pub. L. Page 1137 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 87–305, § 5(b), Sept. 26, 1961, 75 Stat. 667; Pub. L. 91–151, title I, § 9, Dec. 23, 1969, 83 Stat. 376; Pub. L. 94–152, § 3, Dec. 16, 1975, 89 Stat. 810; Pub. L. 102–99, § 5, Aug. 17, 1991, 105 Stat. 487; Pub. L. 111–67, § 9, Sept. 30, 2009, 123 Stat. 2018; Pub. L. 117–286, § 4(a)(321), (322), Dec. 27, 2022, 136 Stat. 4341.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b), and (d)(1), was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Pro- duction Act of 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 4501 of this title and Tables. CODIFICATION Section was formerly classified to section 2158 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. AMENDMENTS 2022—Subsec. (d)(1). Pub. L. 117–286, § 4(a)(321), sub- stituted ‘‘chapter 10 of title 5, whether or not such chapter’’ for ‘‘the Federal Advisory Committee Act, whether or not such Act’’. Subsec. (n). Pub. L. 117–286, § 4(a)(322), substituted ‘‘chapter 10 of title 5’’ for ‘‘Advisory Committee Act provisions’’ in heading and ‘‘chapter 10 of title 5’’ for ‘‘the Federal Advisory Committee Act (5 U.S.C. App.)’’ in introductory provisions. 2009—Subsec. (c)(1). Pub. L. 111–67, § 9(1)(A), sub- stituted ‘‘national defense.’’ for ‘‘defense of the United States through the development of preparedness pro- grams and the expansion of productive capacity and supply beyond levels needed to meet essential civilian demand in the United States.’’ Subsec. (c)(3). Pub. L. 111–67, § 9(1)(B), added par. (3). Subsec. (f)(2). Pub. L. 111–67, § 9(2), substituted ‘‘5 years’’ for ‘‘two years’’ in two places and substituted ‘‘5-year’’ for ‘‘two-year’’. Subsec. (n). Pub. L. 111–67, § 9(3), added subsec. (n) and struck out former subsec. (n). Prior to amendment, text read as follows: ‘‘Notwithstanding any other provi- sion of law, any activity conducted under a voluntary agreement or plan of action approved pursuant to this section, when conducted in compliance with the re- quirements of this section, any regulation prescribed under this subsection, and the provisions of the vol- untary agreement or plan of action, shall be exempt from the Federal Advisory Committee Act and any other Federal law and any Federal regulation relating to advisory committees.’’ 1991—Subsec. (a). Pub. L. 102–99, § 5(1), struck out ref- erence to section 708A(j) of act Sept. 8, 1950, ch. 932, after reference to subsec. (j) of this section. Subsec. (b). Pub. L. 102–99, § 5(2), added subsec. (b) and struck out former subsec. (b) which defined the term ‘‘antitrust laws’’ as used in this section and in section 708A of act Sept. 8, 1950, ch. 932. Subsec. (c)(1). Pub. L. 102–99, § 5(3), inserted ‘‘and plans of action’’ after ‘‘voluntary agreements’’ and struck out provisions relating to exception as provided in section 708A of act Sept. 8, 1950, ch. 932. Subsec. (c)(2). Pub. L. 102–99, § 5(4), struck out at end ‘‘For the purpose of carrying out the objectives of sub- chapter I of this chapter, the authority granted in paragraph (1) of this subsection shall not be delegated to more than one individual.’’ Subsec. (d)(1). Pub. L. 102–99, § 5(5), inserted ‘‘and ex- cept as provided in subsection (n)’’ after ‘‘specified in this section’’ and struck out ‘‘, and the meetings of such committees shall be open to the public’’ after ‘‘representatives of the public’’. Subsec. (d)(2). Pub. L. 102–99, § 5(6), substituted ‘‘para- graphs (1), (3), and (4) of section 552(b)’’ for ‘‘section 552(b)(1) and (b)(3)’’. Subsec. (e)(1). Pub. L. 102–99, § 5(7), substituted ‘‘vol- untary agreements and plans of action’’ for ‘‘voluntary agreements’’. Subsec. (e)(3)(D). Pub. L. 102–99, § 5(8), substituted ‘‘section 552b(c)’’ for ‘‘subsection (b)(1) or (b)(3) of sec- tion 552’’. Subsec. (e)(3)(F). Pub. L. 102–99, § 5(9), inserted ref- erence to Congress. Subsec. (e)(3)(G). Pub. L. 102–99, § 5(10), substituted ‘‘paragraphs (1), (3), and (4) of section 552(b)’’ for ‘‘sub- sections (b)(1) and (b)(3) of section 552’’. Subsec. (f)(1). Pub. L. 102–99, § 5(11)(A), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’. Subsec. (f)(1)(A). Pub. L. 102–99, § 5(12), inserted ‘‘and submits a copy of such agreement or plan to the Con- gress’’ after ‘‘subsection (c)(1)’’. Pub. L. 102–99, § 5(11)(B), inserted ‘‘or plan’’ after ‘‘the agreement’’ wherever appearing. Subsec. (f)(1)(B). Pub. L. 102–99, § 5(13), inserted before period ‘‘and publishes such finding in the Federal Reg- ister’’. Pub. L. 102–99, § 5(11)(A), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wherever appearing. Subsec. (f)(2). Pub. L. 102–99, § 5(14), inserted ‘‘and publish such certification or finding in the Federal Register’’ before ‘‘, in which case’’. Pub. L. 102–99, § 5(11), inserted ‘‘or plan’’ after ‘‘the agreement’’, and ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wherever appearing. Subsec. (g). Pub. L. 102–99, § 5(11)(A), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’. Subsec. (g)(1) to (3). Pub. L. 102–99, § 5(11)(B), inserted ‘‘or plan’’ after ‘‘the agreement’’. Subsec. (h). Pub. L. 102–99, § 5(15)(A), inserted ‘‘and plans of action’’ after ‘‘voluntary agreements’’. Subsec. (h)(1), (2). Pub. L. 102–99, § 5(15)(B), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wher- ever appearing. Subsec. (h)(3). Pub. L. 102–99, § 5(16), substituted ‘‘paragraph (1), (3), or (4) of section 552(b)’’ for ‘‘sub- sections (b)(1) and (b)(3) of section 552’’. Pub. L. 102–99, § 5(15)(B), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’. Subsec. (h)(4) to (6). Pub. L. 102–99, § 5(15)(B), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wher- ever appearing. Subsec. (h)(7), (8). Pub. L. 102–99, § 5(15)(B), (17), in- serted ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wherever appearing and substituted ‘‘section 552b(c)’’ for ‘‘subsection (b)(1) or (b)(3) of section 552’’. Subsec. (h)(9), (10). Pub. L. 102–99, § 5(15)(B), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wher- ever appearing. Subsec. (h)(11). Pub. L. 102–99, § 5(15)(C)–(E), added par. (11). Subsec. (j). Pub. L. 102–99, § 5(18), added subsec. (j) and struck out former subsec. (j) which read as follows: ‘‘There shall be available as a defense for any person to any civil or criminal action brought for violation of the antitrust laws (or any similar law of any State) with respect to any act or omission to act to develop or carry out any voluntary agreement under this section that— ‘‘(1) such act or omission to act was taken in good faith by that person— ‘‘(A) in the course of developing a voluntary agreement under this section, or ‘‘(B) to carry out a voluntary agreement under this section; and ‘‘(2) such person fully complied with this section and the rules promulgated hereunder, and acted in accordance with the terms of the voluntary agree- ment.’’ Subsec. (k). Pub. L. 102–99, § 5(19), inserted ‘‘and plans of action’’ after ‘‘voluntary agreements’’ wherever ap- pearing. Subsec. (l). Pub. L. 102–99, § 5(20), inserted ‘‘or plan of action’’ after ‘‘voluntary agreement’’. Subsecs. (n), (o). Pub. L. 102–99, § 5(21), added subsecs. (n) and (o). Page 1138 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 1975—Subsec. (a). Pub. L. 94–152 substituted provi- sions relating to immunity from civil and criminal li- ability under the antitrust laws for provisions author- izing President to approve voluntary programs and agreements under this chapter. Subsec. (b). Pub. L. 94–152 substituted definition of ‘‘antitrust laws’’ for provisions exempting under cer- tain conditions acts or omissions to act pursuant to this chapter from the antitrust laws or the Federal Trade Commission Act. Subsec. (c). Pub. L. 94–152 restructured subsec. (c) into pars. (1) and (2), and, as so restructured, inserted provisions of par. (1) authorizing President to consult with leaders of industry, finance, agriculture and labor with a view to developing voluntary agreements to help provide for the defense of the United States whenever he finds conditions exist which pose a threat to the na- tional defense or preparedness programs and trans- ferred existing provisions to par. (2), and, as trans- ferred, substituted provisions which authorized Presi- dent to delegate authority granted to him in par. (1) of this subsection and under subsec. (d) of this section, for provisions authorizing delegation of authority of sub- sec. (b) of this section. Subsec. (d). Pub. L. 94–152 substituted provisions re- lating to establishment, membership, meetings, tran- scripts, etc. of advisory committees, for provisions re- lating to application of this section to acts or omis- sions to act after withdrawal of any request or finding under this section or withdrawal of approval of Attor- ney General. Subsec. (e). Pub. L. 94–152 substituted provisions re- lating to promulgation of rules for voluntary agree- ments, procedures for promulgation and required provi- sions, for provisions relating to monitoring by Attor- ney General of agreements in force and reports to President and Congress. Subsecs. (f) to (m). Pub. L. 94–152 added subsecs. (f) to (m). 1969—Subsec. (b). Pub. L. 91–151, § 9(a), struck out pro- vision under which exemption from prohibitions of antitrust laws and application of Federal Trade Com- mission Act had been limited to only those voluntary agreements covering military equipment purchased by Defense Department. Subsec. (f). Pub. L. 91–151, § 9(b), struck out subsec. (f) which prohibited approval of voluntary credit control agreements under this section after June 30, 1952. 1961—Subsec. (e). Pub. L. 87–305 struck out ‘‘, and the reports hereafter required,’’ after ‘‘Such surveys’’ and ‘‘within ninety days after the approval of this chapter, and’’ after ‘‘President’’ and substituted ‘‘studies of vol- untary agreements and programs authorized by this section’’ for ‘‘such surveys and including such rec- ommendations as he may deem desirable’’. 1955—Subsec. (b). Act Aug. 9, 1955, § 6(1), inserted pro- viso. Subsec. (d). Act Aug. 9, 1955, § 6(2), exempted subse- quent acts or omissions to act upon withdrawal by At- torney General of his approval of voluntary agreement or program. Subsec. (e). Act Aug. 9, 1955, § 6(3), (4), included stud- ies of voluntary agreements and programs in surveys and reports, and required Attorney General to report to Congress at least once every three months. 1952—Subsec. (f). Act June 30, 1952, added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–99 effective Oct. 20, 1990, see section 7 of Pub. L. 102–99, set out as a note under section 4511 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Pub. L. 94–152, § 9, Dec. 16, 1975, 89 Stat. 821, as amend- ed by Pub. L. 94–153, Dec. 16, 1975, 89 Stat. 822; Pub. L. 94–220, Feb. 27, 1976, 90 Stat. 195, provided that: ‘‘This Act and the amendments made by it [see Tables for classification] shall take effect at the close of Novem- ber 30, 1975, except that the amendment made by sec- tion 3 [amending this section] shall take effect upon the one hundred and twentieth day beginning after the date of its enactment [Dec. 16, 1975].’’ EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Aug. 9, 1955, effective as of the close of July 31, 1955, see section 11 of act Aug. 9, 1955, set out as a note under section 4502 of this title. CONTINUATION IN EFFECT OF EXISTING VOLUNTARY AGREEMENTS Pub. L. 94–152, § 4, Dec. 16, 1975, 89 Stat. 820, provided that: ‘‘(a) Any voluntary agreement— ‘‘(1) entered into under section 708 of the Defense Production Act of 1950 [50 U.S.C. 4558] prior to the ef- fective date of this Act [see Effective Date of 1975 Amendment note above], and ‘‘(2) in effect immediately prior to such date may continue in effect (except as otherwise provided in section 708A(o) of the Defense Production Act of 1950, as amended by this Act) and shall be carried out in accordance with such section 708 [50 U.S.C. 4558], as amended by this Act, and such section 708A. ‘‘(b) No provision of the Defense Production Act of 1950 [50 U.S.C. 4501 et seq.], as amended by this Act, shall be construed as granting immunity for, nor as limiting or in any way affecting any remedy or penalty which may result from any legal action or proceeding arising from, any acts or practices which occurred (1) prior to the date of enactment of this Act [Dec. 16, 1975], (2) outside the scope and purpose or not in com- pliance with the terms and conditions of the Defense Production Act of 1950, or (3) subsequent to the expira- tion or repeal of the Defense Production Act of 1950. ‘‘(c) Effective on the date of enactment of this Act [Dec. 16, 1975], the immunity conferred by section 708 or 708A of the Defense Production Act of 1950, as amended by this Act, shall not apply to any action taken or au- thorized to be taken by or under the Emergency Petro- leum Allocation Act of 1973 [15 U.S.C. 751 et seq.].’’ [Section 708A of the Defense Production Act of 1950, referred to in section 4 of Pub. L. 94–152, set out above, which was classified to section 2158a of the former Ap- pendix to this title, was repealed by Pub. L. 102–99, § 4, Aug. 17, 1991, 105 Stat. 487.] TERMINATION OF ADVISORY COMMITTEES Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2- year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 1013 of Title 5, Government Organization and Employees. Executive Documents DELEGATION OF FUNCTIONS Authority of President under subsecs. (c)(1) and (d) of this section with respect to responding to the spread of COVID–19 within the United States delegated to Sec- retary of Health and Human Services and Secretary of Homeland Security, see section 3 of Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18404, set out as a note under sec- tion 4511 of this title. Page 1139 TITLE 50—WAR AND NATIONAL DEFENSE § 4560 Functions conferred upon President under this sec- tion necessary to effect changes in composition of, or to take other action respecting voluntary agreements and programs relating to, small business production pools approved prior to July 31, 1953, delegated to Ad- ministrator of Small Business Administration by Ex. Ord. No. 10493, Oct. 14, 1953, 18 F.R. 6583, set out as a note under section 640 of Title 15, Commerce and Trade. Functions of President under this chapter relating to production, conservation, use, control, distribution, and allocation of energy, delegated to Secretary of En- ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, 39 F.R. 23185, set out as a note under section 761 of Title 15. For delegation of authority of President under sub- secs. (c) and (d) of this section, see sections 401 and 402 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16656, set out as a note under section 4553 of this title. § 4559. Public participation in rulemaking (a) Exemption from Administrative Procedure Act Any regulation issued under this chapter shall not be subject to sections 551 through 559 of title 5. (b) Opportunity for notice and comment (1) In general Except as provided in subsection (c), any regulation issued under this chapter shall be published in the Federal Register and oppor- tunity for public comment shall be provided for not less than 30 days, consistent with the requirements of section 553(b) of title 5. (2) Waiver for temporary provisions The requirements of paragraph (1) may be waived, if— (A) the officer authorized to issue the reg- ulation finds that urgent and compelling cir- cumstances make compliance with such re- quirements impracticable; (B) the regulation is issued on a temporary basis; and (C) the publication of such temporary reg- ulation is accompanied by the finding made under subparagraph (A) (and a brief state- ment of the reasons for such finding) and an opportunity for public comment is provided for not less than 30 days before any regula- tion becomes final. (3) Consideration of public comments All comments received during the public comment period specified pursuant to para- graph (1) or (2) shall be considered and the publication of the final regulation shall con- tain written responses to such comments. (c) Public comment on procurement regulations Any procurement policy, regulation, proce- dure, or form (including any amendment or modification of any such policy, regulation, pro- cedure, or form) issued under this chapter shall be subject to section 1707 of title 41. (Sept. 8, 1950, ch. 932, title VII, § 709, 64 Stat. 819; Pub. L. 102–558, title I, § 136(a), Oct. 28, 1992, 106 Stat. 4216.) TERMINATION OF SECTION For termination of section, see section 4564(a) of this title. Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Production Act of 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 4501 of this title and Tables. CODIFICATION Section was formerly classified to section 2159 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. In subsec. (c), ‘‘section 1707 of title 41’’ substituted for ‘‘section 22 of the Office of Federal Procurement Policy Act’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con- tracts. AMENDMENTS 1992—Pub. L. 102–558 amended section generally. Prior to amendment, section read as follows: ‘‘The functions exercised under this chapter shall be excluded from the operation of the Administrative Procedure Act (60 Stat. 237) except as to the requirements of section 3 thereof. Any rule, regulation, or order, or amendment thereto, issued under authority of this chapter shall be accom- panied by a statement that in the formulation thereof there has been consultation with industry representa- tives, including trade association representatives, and that consideration has been given to their rec- ommendations, or that special circumstances have ren- dered such consultation impracticable or contrary to the interest of the national defense, but no such rule, regulation, or order shall be invalid by reason of any subsequent finding by judicial or other authority that such a statement is inaccurate.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–558, title I, § 136(b), Oct. 28, 1992, 106 Stat. 4217, provided that: ‘‘Section 709 of the Defense Produc- tion Act of 1950 (50 U.S.C. App. 2159) [now 50 U.S.C. 4559], as amended by subsection (a) of this section, shall not apply to any regulation issued in proposed or final form on or before the date of enactment of this Act [Oct. 28, 1992].’’ § 4560. Employment of personnel; appointment policies; nucleus executive reserve; use of confidential information by employees; print- ing and distribution of reports (a) Repealed. June 28, 1955, ch. 189, § 12(c)(1), 69 Stat. 180 (b) Presidential appointments (1) The President is further authorized, to the extent he deems it necessary and appropriate in order to carry out the provisions of this chapter and subject to such regulations as he may issue, to employ persons of outstanding experience and ability without compensation; (2) The President shall be guided in the exer- cise of the authority provided in this subsection by the following policies: (i) So far as possible, operations under this chapter shall be carried on by full-time, sala- ried employees of the Government, and ap- pointments under this authority shall be to advisory or consultative positions only. (ii) Appointments to positions other than advisory or consultative may be made under this authority only when the requirements of