"(C) the Act entitled 'An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes' (38 Stat. 717), as amended;

"(D) sections 73 and 74 of the Act entitled 'An Act to reduce taxation, to provide revenue for the Government, and for other purposes', approved August 27, 1894 (28 Stat. 579), as amended;

"(E) the Act of June 19, 1936 (49 Stat. 1526); and

"(F) the Act entitled 'An Act to promote export trade, and for other purposes (40 Stat. 516), as amended.

"(2) The term 'international energy emergency' means any period (A) beginning on any date which the President determines allocation of petroleum products to nations participating in the international agreement is required by chapters III and IV of such program, and (B) ending on a date on which he determines such allocation is no longer required. Such a period may not exceed ninety days, but the President may establish one or more additional periods by making the determination under clause (A) of the preceding sentence. Any determination respecting the beginning or end of any such period shall be published in the Federal Register.

"(3) The term 'international agreement' means the Agreement on an International Energy Program, signed by the United States on November 18,

1974.

"(4) The term 'Administrator' means the Administrator of the Federal Energy Administration.

"(5) The term 'petroleum product' means

"(A) crude oil,

"(B) natural gas liquids and other liquids produced in association with crude oil or natural gas,

"(C) refined petroleum products, including but not limited to gasoline, kerosene, distillates, residual fuel oil, refined lubricating oil, and liquefied petroleum gases; and

"(D) blending agents and additives used in conjunction with crude oil land refined petroleum products.

"(c) The requirements of this section shall be the sole procedures applicable to the development or implementation of voluntary agreements or plans of action to accomplish the objectives of the international agreement with respect to international allocation of petroleum products and the information system provided in such agreement, and to the availability of immunity from the antitrust laws respecting the development or implementation of such voluntary agreements or plans of action.

"(d) (1) To achieve the purposes of the international agreement with respect to international allocation of petroleum products and the information system provided in such agreement, the Administrator may provide for the establishment of such advisory committees as he determines are necessary. In addition to the requirements specified in this section, such advisory committees shall be subject to the provisions of the Federal Advisory Committee Act and section 17 of the Federal Energy Administration Act, whether or not such Acts or any of their provisions expire or terminate during the term of this Act or of such committees, and in all cases such advisory committees shall be chaired by a Federal employee, other than an individual employed pursuant to section 3109 of title 5, United States Code, and shall include representatives of the public, and the meetings of such committees shall be open to the public. The Attorney General and the Federal Trade Commission shall have adequate advance notice of any meeting and may have an official representative attend and participate in any such meeting. "(2) A full and complete verbatim transcript shall be kept of such advisory committee meetings, 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 section 552(b)(1) and (b) (3) of title 5, United States Code.

"(3) For the purposes of this section, the provisions of subsection (a) of section 17 of the Federal Energy Administration Act shall apply to any board, task force, commission, committee, or similar group, not composed entirely of fulltime Federal employees, other than individuals employed pursuant to section 3109 of title 5, United States Code, established or utilized to advise the United States Government with respect to the formulation or carrying out of any agreement or plan of action under the international agreement.

"(e) The Administrator, subject to the approval of the Attorney General, after both of them have consulted with the Federal Trade Commission and the Secretary of State, shall promulgate, by rule, standards and procedures by which persons engaged in the business of producing, refining, marketing, or distributing petroleum products may develop and implement voluntary agreements and plans of action which are required to implement the provisions of the international agreement which relate to international allocation of petroleum products and the information system provided in such agreement.

"(f) The standards and procedures under subsection (e) shall be promulgated pursuant to section 553 of title 5, United States Code. They shall provide, among other things, that

“(1) (A) Meetings held to develop or implement a voluntary agreement or plan of action under this section shall permit attendance by interested persons, including all interested segments of the petroleum industry, consumers, committees of Congress, and the public, shall be preceded by timely and adequate notice with identification of the agenda of such meeting to the Attorney General, the Federal Trade Commission, committees of Congress, and (except during an international energy supply emergency) to the public, and shall be initiated and chaired by a Federal employee other than an individual employed pursuant to section 3109 of title 5, United States Code; except that (i) meetings of bodies created by the International Energy Agency established by the international agreement need not be open to interested persons and need not be initiated and chaired by a Federal employee, and (ii) the Administrator, in consultation with the Secretary of State and the Attorney General, may determine that a meeting held to implement or carry out an agreement or plan of action shall not be public and that attendance may be limited, subject to reasonable representation of affected segments of the petroleum industry (as determined by the Administrator, after consultation with the Attorney General) if he finds that a wider disclosure would be detrimental to the foreign policy interests of the United States.

"(B) No meetings may be held to develop or implement a voluntary agreement or plan of action under this section, unless a Federal employee other than an individual employed pursuant to section 3109 of title 5, United States Code, is present; except that during an international energy supply emergency, a meeting to implement such an agreement or plan of action may be held outside the presence of such an employee (and need not be initiated or chaired by such an employee) if prior consent is granted by the Administrator and the Attorney General. The Administrator and the Attorney General shall each make a written record of the granting of any such prior consent.

**(2) Interested persons permitted to attend such a meeting shall be afforded an opportunity to present in writing and orally, data, views, and arguments at such meetings.

(3) A verbatim transcript or, if keeping a verbatim transcript is not practicable, full and complete notes or minutes shall be kept of any meeting held or communication made to develop or implement a voluntary agreement or plan of action under this section, between or among persons who are parties to such a voluntary agreement or, with respect to meetings held or communications made to develop a voluntary agreement, persons who may become parties to such an agreement; except that, during any international energy supply emergency, in lieu of minutes or a transcript, a log may be kept containing a notation of the parties to, and subject matter of, any such communication (other than in the course of such a meeting). Such minutes, notes, transcript, or log shall be deposited, together with any agreement resulting therefrom, with the Administrator, and shall be available to the Attorney General and the Federal Trade Commission. Such minutes, notes, transcripts, logs, and agreements shall be available for public inspection and copying, except as otherwise provided in section 552(b) (1) and (b)(3) of title 5, United States Code, or pursuant to a determination by the Administrator, in consultation with the Secretary of State and the Attorney General, that such disclosure would be detrimental to the foreign policy interests of the United States.

"(4) No provision of this section may be exercised so as to prevent committees of Congress from attending meetings to which this subsection applies. or from having access to any transcripts or minutes of such meetings, or logs of communication.

"(g) Subject to the prior approval of the Attorney General and the Federal Trade Commission, the Administrator may suspend the application of—

"(1) sections 10 and 11 of the Federal Advisory Committee Act,

"(2) subsections (b) and (c) of section 17 of the Federal Energy Administration Act,

"(3) the requirement under subsection (d) (1) of this section that meetings be open to the public; and

"(4) the second sentence of subsection (d) (2) of this section;

if the Administrator determines in each instance that such suspension is essential to the implementation of the international agreement as it relates to the internal allocation of petroleum products or the information system provided in such agreement and if the Secretary of State determines that the application of such provisions would be detrimental to the foreign policy interests of the United States. Such determinations by the Administrator and the Secretary of State shall be in writing, shall set forth, to the extent possible consistent with the need to protect the security of classified national defense and foreign policy information, a detailed explanation of reasons justifying the granting of such suspension, and shall be published in the Federal Register at a reasonable time prior to the effective date of any such suspension.

"(h) (1) The Attorney General and the Federal Trade Commission shall participate from the beginning in any meeting to develop or implement voluntary agreements authorized under this section and, when practicable, in any meeting to implement plans of action authorized under this section. Each may propose any alternative which would avoid or overcome, to the greatest extent practicable, possible anticompetitive effects while achieving substantially the purposes of this section. A voluntary agreement or plan of action under this section may not be implemented unless approved by the Attorney General, after consultation with the Federal Trade Commission. Prior to the expiration of the period determined under paragraph (2), the Federal Trade Commission shall transmit to the Attorney General its views as to whether such an agreement should be approved, and shall publish such views in the Federal Register. The Attorney General, in consultation with the Federal Trade Commission, the Secretary of State, and the Administrator, shall have the right to review, amend, modify, disapprove, or revoke, on his own motion or upon the request of the Federal Trade Commission or any interested person, any voluntary agreement or plan of action at any time, and, if revoked, thereby withdraw prospectively the immunity which may be conferred by subsection (j) of this section.

“(2) Any voluntary agreement entered into pursuant to this section shall be submitted in writing to the Attorney General and the Federal Trade Commission twenty days before being implemented (where it shall be made available for public inspection and copying subject to the provisions of subsection (g) of this section); except that during an international energy supply emergency, the Administrator, subject to approval of the Attorney General, may reduce such twenty-day period. Any action taken pursuant to such voluntary agreement or plan of action shall be reported to the Attorney General and the Federal Trade Commission pursuant to such regulations as shall be prescribed under subsections (i) (3) and (i) (4).

"(i) (1) The Attorney General and the Federal Trade Commission shall monitor the development and implementation of voluntary agreements and plans of action authorized under this section to assure the protection and fostering of competition and to prevent anticompetitive practices and effect.

“(2) In addition to any requirements specified under subsections (e) and (f) of this section and in order to carry out the purposes of this section, the Attorney General, in consultation with the Federal Trade Commission and the Administrator, shall promulgate regulations concerning the maintenance of necessary and appropriate records related to the development and implementation of voluntary agreements and plans of action pursuant to this section.

"(3) Persons developing and implementing voluntary agreements or plans of action pursuant to this section shall maintain those records required by such regulations. Both the Attorney General and the Federal Trade Commission shall have access to and the right to copy such records at reasonable times and places and upon reasonable notice.

"(4) The Attorney General and the Federal Trade Commission may each prescribe pursuant to section 553 of title 5. United States Code, such rules and regulations as may be necessary or appropriate to carry out their respective

responsibilities under this section. They may both utilize for such purposes and for purposes of enforcement any and all powers conferred upon the Federal Trade Commission or the Department of Justice, or both, by any other provision of law, including the antitrust laws, the Antitrust Procedures and Penalties Act, or the Antitrust Civil Process Act; and wherever any such provision of law refers to the purposes of this Act' or like terms, the reference shall be understood to be this section.

"(j) There shall be available as a defense to any civil or criminal action brought under the antitrust laws (or any similar State law) in respect of actions taken to develop or implement a voluntary agreement or plan of action by persons engaged in the business of producing, refining, marketing, or distributing petroleum products (provided that such actions were not taken unnecessarily and for the purpose of injuring competition) that—

"(1) such action was taken

"(A) in the course of developing a voluntary agreement or plan of action pursuant to this section, or

"(B) pursuant to a voluntary agreement or plan of action authorized and approved in accordance with this section, and

"(2) such persons fully complied with the requirements of this section and the rules and regulations promulgated hereunder.

Persons interposing the defense provided by this section shall have the burden of proof, except that the burden shall be on the plaintiff with respect to whether the actions were taken unnecessarily and for the purpose of injuring competition. "(3) 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 solely by action taken during an international energy supply emergency in accordance with a voluntary agreement authorized and approved under the provisions of this section.

"(k) No provision of this section 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 section, (2) outside the scope and purpose or not in compliance with the terms and conditions of this section, or (3) subsequent to the expiration or repeal of this section or Act.

"(1) (1) The Administrator, after consultation with the Secretary of State, shall report annually to the President and the Congress on the performance under voluntary agreements or plans of action to accomplish the objectives of the international agreement with respect to international allocation of petroleum products and the information system provided in such agreement.

"(2) The Attorney General and the Federal Trade Commission shall each submit to the Congress and to the President, at least once every six months, reports on the impact on competition and on small business of actions authorized by this section.".

SEC. 5. The second sentence of section 710(e) of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2160 (e)), is amended to read as follows: "Members of this executive reserve who are not full-time Government employees may be allowed transportation and per diem in lieu of subsistence, as prescribed under title 5 of the United States Code for individuals serving without pay, while away from their homes or regular places of business for the purpose of participating in the executive reserve training program.".

SEC. 6. The provisions of sections 708 and 708A, as amended and added respectively by this Act, shall become effective one hundred and twenty days after the date of enactment.

COMMITTEE DELIBERATIONS

On April 25, 1975, Senators Proxmire, Sparkman and Williams introduced S. 1537, which was referred to the Committee on Banking, Housing and Urban Affairs. The Committee held hearings on S. 1537, on July 7, 1975. On July 29, 1975, the Committee met in open executive session at which a quorum was present and at the conclusion thereof a substitute bill was ordered reported with an amendment. This amendment replaces the immunity provisions in Section 708 (j) and Section 708A (j) of the substitute with immunity provisions adopted

from the parallel section of S. 622, "The Standby Energy Authorities Act," which was passed by the Senate on April 10, 1975.

I. PURPOSE OF THE MEASURE

The purpose of S. 1537, the "Defense Production Act Amendments of 1975", is three-fold. The major purpose is to extend for the customary period of two years the titles of the Defense Production Act. of 1950, as amended. These titles provide the authority for a number of programs aimed at maintaining the national defense industrial production base, at preparing mobilization programs, at providing uniform cost accounting standards for contractors, and at examining national policy with regard to materials supplies and shortages. A second purpose of the measure is to remove the $15 limitation on per diem allowances for members of the National Defense Executive Reserve and provides that members may be allowed transportation and per diem allowances in accordance with the laws that authorize such allowances for other individuals serving the United States without pay.

A third purpose of S. 1537 is to amend Section 708 of the Defense Production Act. Section 708 provides authority for the granting of immunity from antitrust action to voluntary agreements, which the President may request from representatives of industry, business, financing, agriculture, labor and other interests in order to further the objectives of the Act. The changes which the measure makes in Sec. 708 are of two kinds, First, they make a distinction between voluntary agreements of a general sort (treated in the amended Sec. 708) and the voluntary agreement developed in support of the International Energy Program (treated in the new Sec. 708A). Secondly, the amendments provide in both cases for strengthened procedural safeguards for the development and implementation of voluntary agreements, in order that exemptions from antitrust immunity may not be granted without adequate assurance that they are in the best interest of the nation as a whole.

II. SYNOPSIS OF LEGISLATION

SEC. 1. Enabling clause.

SEC. 2. Extends the Defense Production Act to September 30, 1977 to coincide with the new fiscal year established in the Congressional Budget Act of 1974 (P.L. 93-344).

SEC. 3. Amends Section 708 of the Defense Production Act to provide additional procedural safeguards for the granting of antitrust immunity to the development and implementation of voluntary agreements requested by the President from various industries or other interests to meet national defense emergencies.

Chief among the safeguards provided in S. 1537 are provisions for: Greater monitoring of the development and implementation of voluntary agreements by the Attorney General and the Federal Trade Commission:

Promulgation by the Attorney General and the Federal Trade Commission of standards and procedures to be followed when developing or implementing any voluntary agreements or programs pursuant thereto, as well as joint regulations for voluntary agreements;