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On April 23rd, the Justice Department's (DOJ) Antitrust Division, in collaboration with the Federal Trade Commission (FTC), published in the Federal Register formal approvals for the DOE Defense Production Act (DPA) Consortium's agreements relating to nuclear energy. The agreements permit domestic industry to work together to ensure that the capacity for the nuclear fuel supply chain – including mining and milling, conversion, enrichment, deconversion, fabrication, recycling and reprocessing – is available for the continued reliable operation of the nation’s reactors.
DPA Section 708 authorizes industry to enter into agreements necessary to meet national defense requirements. The law established an antitrust defense for actions taken to develop or carry out these approved agreements even if they may have anticompetitive effects. Importantly, however, the defense falls short of absolute immunity. The antitrust agencies' approval does not change the limited character of the exemption. The Justice Department will be leading efforts with FTC and DOE to continue to monitor the DOE DPA Consortium in its implementation of the approved Voluntary Agreement and Plans of Action.
Steptoe's energy, government contracting, and antitrust practice teams are available to provide additional information and guidance regarding compliance with the DPA Section 708 carve out and to assist with continued agency monitoring and/or private action. Please reach out with any questions.
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