Promoting Competition in the American Economy
| Published date | 14 July 2021 |
| Citation | 86 FR 36987 |
| Record Number | 2021-15069 |
| Section | Presidential Documents |
| Court | Executive Office Of The President |
Federal Register, Volume 86 Issue 132 (Wednesday, July 14, 2021)
[Federal Register Volume 86, Number 132 (Wednesday, July 14, 2021)]
[Presidential Documents]
[Pages 36987-36999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15069] Presidential Documents
Federal Register / Vol. 86, No. 132 / Wednesday, July 14, 2021 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 36987]]
Executive Order 14036 of July 9, 2021
Promoting Competition in the American Economy
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and in order to promote the interests of
American workers, businesses, and consumers, it is
hereby ordered as follows:
Section 1. Policy. A fair, open, and competitive
marketplace has long been a cornerstone of the American
economy, while excessive market concentration threatens
basic economic liberties, democratic accountability,
and the welfare of workers, farmers, small businesses,
startups, and consumers.
The American promise of a broad and sustained
prosperity depends on an open and competitive economy.
For workers, a competitive marketplace creates more
high-quality jobs and the economic freedom to switch
jobs or negotiate a higher wage. For small businesses
and farmers, it creates more choices among suppliers
and major buyers, leading to more take-home income,
which they can reinvest in their enterprises. For
entrepreneurs, it provides space to experiment,
innovate, and pursue the new ideas that have for
centuries powered the American economy and improved our
quality of life. And for consumers, it means more
choices, better service, and lower prices.
Robust competition is critical to preserving America's
role as the world's leading economy.
Yet over the last several decades, as industries have
consolidated, competition has weakened in too many
markets, denying Americans the benefits of an open
economy and widening racial, income, and wealth
inequality. Federal Government inaction has contributed
to these problems, with workers, farmers, small
businesses, and consumers paying the price.
Consolidation has increased the power of corporate
employers, making it harder for workers to bargain for
higher wages and better work conditions. Powerful
companies require workers to sign non-compete
agreements that restrict their ability to change jobs.
And, while many occupational licenses are critical to
increasing wages for workers and especially workers of
color, some overly restrictive occupational licensing
requirements can impede workers' ability to find jobs
and to move between States.
Consolidation in the agricultural industry is making it
too hard for small family farms to survive. Farmers are
squeezed between concentrated market power in the
agricultural input industries--seed, fertilizer, feed,
and equipment suppliers--and concentrated market power
in the channels for selling agricultural products. As a
result, farmers' share of the value of their
agricultural products has decreased, and poultry
farmers, hog farmers, cattle ranchers, and other
agricultural workers struggle to retain autonomy and to
make sustainable returns.
The American information technology sector has long
been an engine of innovation and growth, but today a
small number of dominant internet platforms use their
power to exclude market entrants, to extract monopoly
profits, and to gather intimate personal information
that they can exploit for their own advantage. Too many
small businesses across the economy depend on those
platforms and a few online marketplaces for their
survival. And too many local newspapers have shuttered
or downsized, in part due to the internet platforms'
dominance in advertising markets.
[[Page 36988]]
Americans are paying too much for prescription drugs
and healthcare services--far more than the prices paid
in other countries. Hospital consolidation has left
many areas, particularly rural communities, with
inadequate or more expensive healthcare options. And
too often, patent and other laws have been misused to
inhibit or delay--for years and even decades--
competition from generic drugs and biosimilars, denying
Americans access to lower-cost drugs.
In the telecommunications sector, Americans likewise
pay too much for broadband, cable television, and other
communications services, in part because of a lack of
adequate competition. In the financial-services sector,
consumers pay steep and often hidden fees because of
industry consolidation. Similarly, the global container
shipping industry has consolidated into a small number
of dominant foreign-owned lines and alliances, which
can disadvantage American exporters.
The problem of economic consolidation now spans these
sectors and many others, endangering our ability to
rebuild and emerge from the coronavirus disease 2019
(COVID-19) pandemic with a vibrant, innovative, and
growing economy. Meanwhile, the United States faces new
challenges to its economic standing in the world,
including unfair competitive pressures from foreign
monopolies and firms that are state-owned or state-
sponsored, or whose market power is directly supported
by foreign governments.
We must act now to reverse these dangerous trends,
which constrain the growth and dynamism of our economy,
impair the creation of high-quality jobs, and threaten
America's economic standing in the world.
This order affirms that it is the policy of my
Administration to enforce the antitrust laws to combat
the excessive concentration of industry, the abuses of
market power, and the harmful effects of monopoly and
monopsony--especially as these issues arise in labor
markets, agricultural markets, Internet platform
industries, healthcare markets (including insurance,
hospital, and prescription drug markets), repair
markets, and United States markets directly affected by
foreign cartel activity.
It is also the policy of my Administration to enforce
the antitrust laws to meet the challenges posed by new
industries and technologies, including the rise of the
dominant Internet platforms, especially as they stem
from serial mergers, the acquisition of nascent
competitors, the aggregation of data, unfair
competition in attention markets, the surveillance of
users, and the presence of network effects.
Whereas decades of industry consolidation have often
led to excessive market concentration, this order
reaffirms that the United States retains the authority
to challenge transactions whose previous consummation
was in violation of the Sherman Antitrust Act (26 Stat.
209, 15 U.S.C. 1 et seq.) (Sherman Act), the Clayton
Antitrust Act (Public Law 63-212, 38 Stat. 730, 15
U.S.C. 12 et seq.) (Clayton Act), or other laws. See 15
U.S.C. 18; Standard Oil Co. v. United States, 221 U.S.
1 (1911).
This order reasserts as United States policy that the
answer to the rising power of foreign monopolies and
cartels is not the tolerance of domestic
monopolization, but rather the promotion of competition
and innovation by firms small and large, at home and
worldwide.
It is also the policy of my Administration to support
aggressive legislative reforms that would lower
prescription drug prices, including by allowing
Medicare to negotiate drug prices, by imposing
inflation caps, and through other related reforms. It
is further the policy of my Administration to support
the enactment of a public health insurance option.
My Administration further reaffirms the policy stated
in Executive Order 13725 of April 15, 2016 (Steps to
Increase Competition and Better Inform Consumers and
Workers to Support Continued Growth of the American
Economy), and the Federal Government's commitment to
the principles that led to the passage of the Sherman
Act, the Clayton Act, the Packers and
[[Page 36989]]
Stockyards Act, 1921 (Public Law 67-51, 42 Stat. 159, 7
U.S.C. 181 et seq.) (Packers and Stockyards Act), the
Celler-Kefauver Antimerger Act (Public Law 81-899, 64
Stat. 1125), the Bank Merger Act (Public Law 86-463, 74
Stat. 129, 12 U.S.C. 1828), and the Telecommunications
Act of 1996 (Public Law 104-104, 110 Stat. 56), among
others.
Sec. 2. The Statutory Basis of a Whole-of-Government
Competition Policy. (a) The antitrust laws, including
the Sherman Act, the Clayton Act, and the Federal Trade
Commission Act (Public Law 63-203, 38 Stat. 717, 15
U.S.C. 41 et seq.), are a first line of defense against
the monopolization of the American economy.
(b) The antitrust laws reflect an underlying policy
favoring competition that transcends those particular
enactments. As the Supreme Court has stated, for
instance, the Sherman Act ``rests on the premise that
the unrestrained interaction of competitive forces will
yield the best allocation of our economic resources,
the lowest prices, the highest quality and the greatest
material progress, while at the same time providing an
environment conducive to the preservation of our
democratic political and social institutions.''
Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4
(1958).
(c) Consistent with these broader policies, and in
addition to the traditional antitrust laws, the
Congress has also enacted industry-specific fair
competition and anti-monopolization laws that often
provide additional protections. Such enactments include
the Packers and Stockyards Act, the Federal Alcohol
Administration Act (Public Law 74-401, 49 Stat. 977, 27
U.S.C. 201 et seq.), the Bank Merger Act, the Drug
Price Competition and Patent Term Restoration Act of
1984 (Public Law 98-417, 98 Stat. 1585), the Shipping
Act of 1984 (Public Law 98-237, 98 Stat. 67, 46 U.S.C.
40101 et seq.) (Shipping Act), the ICC Termination Act
of 1995 (Public Law 104-88, 109 Stat. 803), the
Telecommunications Act of 1996, the Fairness to Contact
Lens Consumers Act (Public Law 108-164, 117 Stat. 2024,
15 U.S.C. 7601 et seq.), and the Dodd-Frank Wall Street
Reform and Consumer Protection Act (Public Law 111-203,
124 Stat. 1376) (Dodd-Frank Act).
(d) These statutes independently charge a number of
executive departments and agencies (agencies) to
protect conditions of fair competition in one or more
ways, including by:
(i) policing unfair, deceptive, and abusive business practices;
(ii) resisting consolidation and promoting competition within industries
through the independent oversight of mergers, acquisitions, and joint
ventures;
(iii) promulgating rules that promote competition, including the market
entry of new competitors; and
(iv) promoting market transparency through compelled disclosure of
information.
(e) The agencies that administer such or similar
authorities include the Department of the Treasury, the
Department of Agriculture, the Department of Health and
Human Services, the Department of Transportation, the
Federal Reserve System, the Federal Trade Commission
(FTC), the Securities and Exchange Commission, the
Federal Deposit Insurance Corporation, the Federal
Communications Commission, the Federal Maritime
Commission, the Commodity Futures Trading Commission,
the Federal Energy Regulatory Commission, the Consumer
Financial Protection Bureau, and the Surface
Transportation Board.
(f) Agencies can influence the conditions of
competition through their exercise of regulatory
authority or through the procurement process. See 41
U.S.C. 1705.
(g) This order recognizes that a whole-of-
government approach is necessary to address
overconcentration, monopolization, and unfair
competition in the American economy. Such an approach
is supported by existing statutory mandates. Agencies
can and should further the polices set forth in section
[[Page 36990]]
1 of this order by, among other things, adopting pro-
competitive regulations and approaches to procurement
and spending, and by rescinding regulations that create
unnecessary barriers to entry that stifle competition.
Sec. 3. Agency Cooperation in Oversight, Investigation,
and Remedies. (a) The Congress frequently has created
overlapping agency jurisdiction in the policing of
anticompetitive conduct and the oversight of mergers.
It is the policy of my Administration that, when
agencies have overlapping jurisdiction, they should
endeavor to cooperate fully in the exercise of their
oversight authority, to benefit from the respective
expertise of the agencies and to improve Government
efficiency.
(b) Where there is overlapping jurisdiction over
particular cases, conduct, transactions, or industries,
agencies are encouraged to coordinate their efforts, as
appropriate and consistent with applicable law, with
respect to:
(i) the investigation of conduct potentially harmful to competition;
(ii) the oversight of proposed mergers, acquisitions, and joint ventures;
and
(iii) the design, execution, and oversight of remedies.
(c) The means of cooperation in cases of
overlapping jurisdiction should include, as appropriate
and consistent with applicable law:
(i) sharing relevant information and industry data;
(ii) in the case of major transactions, soliciting and giving significant
consideration to the views of the Attorney General or the Chair of the FTC,
as applicable; and
(iii) cooperating with any concurrent Department of Justice or FTC
oversight activities under the Sherman Act or Clayton Act.
(d) Nothing in subsections (a) through (c) of this
section shall be construed to suggest that the
statutory standard applied by an agency, or its
independent assessment under that standard, should be
displaced or substituted by the judgment of the
Attorney General or the Chair of the FTC. When their
views are solicited, the Attorney General and the Chair
of the FTC are encouraged to provide a response to the
agency in time for the agency to consider it in advance
of any statutory deadline for agency action.
Sec. 4. The White House Competition Council. (a) There
is established a White House Competition Council
(Council) within the Executive Office of the President.
(b) The Council shall coordinate, promote, and
advance Federal Government efforts to address
overconcentration, monopolization, and unfair
competition in or directly affecting the American
economy, including efforts to:
(i) implement the administrative actions identified in this order;
(ii) develop procedures and best practices for agency cooperation and
coordination on matters of overlapping jurisdiction, as described in
section 3 of this order;
(iii) identify and advance any additional administrative actions necessary
to further the policies set forth in section 1 of this order; and
(iv) identify any potential legislative changes necessary to further the
policies set forth in section 1 of this order.
(c) The Council shall work across agencies to
provide a coordinated response to overconcentration,
monopolization, and unfair competition in or directly
affecting the American economy. The Council shall also
work with each agency to ensure that agency operations
are conducted in a manner that promotes fair
competition, as appropriate and consistent with
applicable law.
(d) The Council shall not discuss any current or
anticipated enforcement actions.
[[Page 36991]]
(e) The Council shall be led by the Assistant to
the President for Economic Policy and Director of the
National Economic Council, who shall serve as Chair of
the Council.
(f) In addition to the Chair, the Council shall
consist of the following members:
(i) the Secretary of the Treasury;
(ii) the Secretary of Defense;
(iii) the Attorney General;
(iv) the Secretary of Agriculture;
(v) the Secretary of Commerce;
(vi) the Secretary of Labor;
(vii) the Secretary of Health and Human Services;
(viii) the Secretary of Transportation;
(ix) the Administrator of the Office of Information and Regulatory Affairs;
and
(x) the heads of such other agencies and offices as the Chair may from time
to time invite to participate.
(g) The Chair shall invite the participation of the
Chair of the FTC, the Chair of the Federal
Communications Commission, the Chair of the Federal
Maritime Commission, the Director of the Consumer
Financial Protection Bureau, and the Chair of the
Surface Transportation Board, to the extent consistent
with their respective statutory authorities and
obligations.
(h) Members of the Council shall designate, not
later than 30 days after the date of this order, a
senior official within their respective agency or
office who shall coordinate with the Council and who
shall be responsible for overseeing the agency's or
office's efforts to address overconcentration,
monopolization, and unfair competition. The Chair may
coordinate subgroups consisting exclusively of Council
members or their designees, as appropriate.
(i) The Council shall meet on a semi-annual basis
unless the Chair determines that a meeting is
unnecessary.
(j) Each agency shall bear its own expenses for
participating in the Council.
Sec. 5. Further Agency Responsibilities. (a) The heads
of all agencies shall consider using their authorities
to further the policies set forth in section 1 of this
order, with particular attention to:
(i) the influence of any of their respective regulations, particularly any
licensing regulations, on concentration and competition in the industries
under their jurisdiction; and
(ii) the potential for their procurement or other spending to improve the
competitiveness of small businesses and businesses with fair labor
practices.
(b) The Attorney General, the Chair of the FTC, and
the heads of other agencies with authority to enforce
the Clayton Act are encouraged to enforce the antitrust
laws fairly and vigorously.
(c) To address the consolidation of industry in
many markets across the economy, as described in
section 1 of this order, the Attorney General and the
Chair of the FTC are encouraged to review the
horizontal and vertical merger guidelines and consider
whether to revise those guidelines.
(d) To avoid the potential for anticompetitive
extension of market power beyond the scope of granted
patents, and to protect standard-setting processes from
abuse, the Attorney General and the Secretary of
Commerce are encouraged to consider whether to revise
their position on the intersection of the intellectual
property and antitrust laws, including by considering
whether to revise the Policy Statement on Remedies for
Standards-Essential Patents Subject to Voluntary F/RAND
Commitments issued jointly by the Department
[[Page 36992]]
of Justice, the United States Patent and Trademark
Office, and the National Institute of Standards and
Technology on December 19, 2019.
(e) To ensure Americans have choices among
financial institutions and to guard against excessive
market power, the Attorney General, in consultation
with the Chairman of the Board of Governors of the
Federal Reserve System, the Chairperson of the Board of
Directors of the Federal Deposit Insurance Corporation,
and the Comptroller of the Currency, is encouraged to
review current practices and adopt a plan, not later
than 180 days after the date of this order, for the
revitalization of merger oversight under the Bank
Merger Act and the Bank Holding Company Act of 1956
(Public Law 84-511, 70 Stat. 133, 12 U.S.C. 1841 et
seq.) that is in accordance with the factors enumerated
in 12 U.S.C. 1828(c) and 1842(c).
(f) To better protect workers from wage collusion,
the Attorney General and the Chair of the FTC are
encouraged to consider whether to revise the Antitrust
Guidance for Human Resource Professionals of October
2016.
(g) To address agreements that may unduly limit
workers' ability to change jobs, the Chair of the FTC
is encouraged to consider working with the rest of the
Commission to exercise the FTC's statutory rulemaking
authority under the Federal Trade Commission Act to
curtail the unfair use of non-compete clauses and other
clauses or agreements that may unfairly limit worker
mobility.
(h) To address persistent and recurrent practices
that inhibit competition, the Chair of the FTC, in the
Chair's discretion, is also encouraged to consider
working with the rest of the Commission to exercise the
FTC's statutory rulemaking authority, as appropriate
and consistent with applicable law, in areas such as:
(i) unfair data collection and surveillance practices that may damage
competition, consumer autonomy, and consumer privacy;
(ii) unfair anticompetitive restrictions on third-party repair or self-
repair of items, such as the restrictions imposed by powerful manufacturers
that prevent farmers from repairing their own equipment;
(iii) unfair anticompetitive conduct or agreements in the prescription drug
industries, such as agreements to delay the market entry of generic drugs
or biosimilars;
(iv) unfair competition in major Internet marketplaces;
(v) unfair occupational licensing restrictions;
(vi) unfair tying practices or exclusionary practices in the brokerage or
listing of real estate; and
(vii) any other unfair industry-specific practices that substantially
inhibit competition.
(i) The Secretary of Agriculture shall:
(i) to address the unfair treatment of farmers and improve conditions of
competition in the markets for their products, consider initiating a
rulemaking or rulemakings under the Packers and Stockyards Act to
strengthen the Department of Agriculture's regulations concerning unfair,
unjustly discriminatory, or deceptive practices and undue or unreasonable
preferences, advantages, prejudices, or disadvantages, with the purpose of
furthering the vigorous implementation of the law established by the
Congress in 1921 and fortified by amendments. In such rulemaking or
rulemakings, the Secretary of Agriculture shall consider, among other
things:
(A) providing clear rules that identify recurrent practices in the
livestock, meat, and poultry industries that are unfair, unjustly
discriminatory, or deceptive and therefore violate the Packers and
Stockyards Act;
(B) reinforcing the long-standing Department of Agriculture
interpretation that it is unnecessary under the Packers and Stockyards Act
to demonstrate
[[Page 36993]]
industry-wide harm to establish a violation of the Act and that the
``unfair, unjustly discriminatory, or deceptive'' treatment of one farmer,
the giving to one farmer of an ``undue or unreasonable preference or
advantage,'' or the subjection of one farmer to an ``undue or unreasonable
prejudice or disadvantage in any respect'' violates the Act;
(C) prohibiting unfair practices related to grower ranking systems--
systems in which the poultry companies, contractors, or dealers exercise
extraordinary control over numerous inputs that determine the amount
farmers are paid and require farmers to assume the risk of factors outside
their control, leaving them more economically vulnerable;
(D) updating the appropriate definitions or set of criteria, or
application thereof, for undue or unreasonable preferences, advantages,
prejudices, or disadvantages under the Packers and Stockyards Act; and
(E) adopting, to the greatest extent possible and as appropriate and
consistent with applicable law, appropriate anti-retaliation protections,
so that farmers may assert their rights without fear of retribution;
(ii) to ensure consumers have accurate, transparent labels that enable them
to choose products made in the United States, consider initiating a
rulemaking to define the conditions under which the labeling of meat
products can bear voluntary statements indicating that the product is of
United States origin, such as ``Product of USA'';
(iii) to ensure that farmers have greater opportunities to access markets
and receive a fair return for their products, not later than 180 days after
the date of this order, submit a report to the Chair of the White House
Competition Council, with a plan to promote competition in the agricultural
industries and to support value-added agriculture and alternative food
distribution systems through such means as:
(A) the creation or expansion of useful information for farmers, such as
model contracts, to lower transaction costs and help farmers negotiate fair
deals;
(B) measures to encourage improvements in transparency and standards so
that consumers may choose to purchase products that support fair treatment
of farmers and agricultural workers and sustainable agricultural practices;
(C) measures to enhance price discovery, increase transparency, and
improve the functioning of the cattle and other livestock markets;
(D) enhanced tools, including any new legislative authorities needed, to
protect whistleblowers, monitor agricultural markets, and enforce relevant
laws;
(E) any investments or other support that could bolster competition
within highly concentrated agricultural markets; and
(F) any other means that the Secretary of Agriculture deems appropriate;
(iv) to improve farmers' and smaller food processors' access to retail
markets, not later than 300 days after the date of this order, in
consultation with the Chair of the FTC, submit a report to the Chair of the
White House Competition Council, on the effect of retail concentration and
retailers' practices on the conditions of competition in the food
industries, including any practices that may violate the Federal Trade
Commission Act, the Robinson-Patman Act (Public Law 74-692, 49 Stat. 1526,
15 U.S.C. 13 et seq.), or other relevant laws, and on grants, loans, and
other support that may enhance access to retail markets by local and
regional food enterprises; and
(v) to help ensure that the intellectual property system, while
incentivizing innovation, does not also unnecessarily reduce competition in
seed and other input markets beyond that reasonably contemplated by the
Patent Act (see 35 U.S.C. 100 et seq. and 7 U.S.C. 2321 et seq.), in
consultation
[[Page 36994]]
with the Under Secretary of Commerce for Intellectual Property and Director
of the United States Patent and Trademark Office, submit a report to the
Chair of the White House Competition Council, enumerating and describing
any relevant concerns of the Department of Agriculture and strategies for
addressing those concerns across intellectual property, antitrust, and
other relevant laws.
(j) To protect the vibrancy of the American markets
for beer, wine, and spirits, and to improve market
access for smaller, independent, and new operations,
the Secretary of the Treasury, in consultation with the
Attorney General and the Chair of the FTC, not later
than 120 days after the date of this order, shall
submit a report to the Chair of the White House
Competition Council, assessing the current market
structure and conditions of competition, including an
assessment of any threats to competition and barriers
to new entrants, including:
(i) any unlawful trade practices in the beer, wine, and spirits markets,
such as certain exclusionary, discriminatory, or anticompetitive
distribution practices, that hinder smaller and independent businesses or
new entrants from distributing their products;
(ii) patterns of consolidation in production, distribution, or retail beer,
wine, and spirits markets; and
(iii) any unnecessary trade practice regulations of matters such as bottle
sizes, permitting, or labeling that may unnecessarily inhibit competition
by increasing costs without serving any public health, informational, or
tax purpose.
(k) To follow up on the foregoing assessment, the
Secretary of the Treasury, through the Administrator of
the Alcohol and Tobacco Tax and Trade Bureau, shall,
not later than 240 days after the date of this order,
consider:
(i) initiating a rulemaking to update the Alcohol and Tobacco Tax and Trade
Bureau's trade practice regulations;
(ii) rescinding or revising any regulations of the beer, wine, and spirits
industries that may unnecessarily inhibit competition; and
(iii) reducing any barriers that impede market access for smaller and
independent brewers, winemakers, and distilleries.
(l) To promote competition, lower prices, and a
vibrant and innovative telecommunications ecosystem,
the Chair of the Federal Communications Commission is
encouraged to work with the rest of the Commission, as
appropriate and consistent with applicable law, to
consider:
(i) adopting through appropriate rulemaking ``Net Neutrality'' rules
similar to those previously adopted under title II of the Communications
Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as
amended by the Telecommunications Act of 1996, in ``Protecting and
Promoting the Open internet,'' 80 Fed.Reg. 19738 (Apr. 13, 2015);
(ii) conducting future spectrum auctions under rules that are designed to
help avoid excessive concentration of spectrum license holdings in the
United States, so as to prevent spectrum stockpiling, warehousing of
spectrum by licensees, or the creation of barriers to entry, and to improve
the conditions of competition in industries that depend upon radio
spectrum, including mobile communications and radio-based broadband
services;
(iii) providing support for the continued development and adoption of 5G
Open Radio Access Network (O-RAN) protocols and software, continuing to
attend meetings of voluntary and consensus-based standards development
organizations, so as to promote or encourage a fair and representative
standard-setting process, and undertaking any other measures that might
promote increased openness, innovation, and competition in the markets for
5G equipment;
(iv) prohibiting unjust or unreasonable early termination fees for end-user
communications contracts, enabling consumers to more easily switch
providers;
[[Page 36995]]
(v) initiating a rulemaking that requires broadband service providers to
display a broadband consumer label, such as that as described in the Public
Notice of the Commission issued on April 4, 2016 (DA 16-357), so as to give
consumers clear, concise, and accurate information regarding provider
prices and fees, performance, and network practices;
(vi) initiating a rulemaking to require broadband service providers to
regularly report broadband price and subscription rates to the Federal
Communications Commission for the purpose of disseminating that information
to the public in a useful manner, to improve price transparency and market
functioning; and
(vii) initiating a rulemaking to prevent landlords and cable and Internet
service providers from inhibiting tenants' choices among providers.
(m) The Secretary of Transportation shall:
(i) to better protect consumers and improve competition, and as appropriate
and consistent with applicable law:
(A) not later than 30 days after the date of this order, appoint or
reappoint members of the Advisory Committee for Aviation Consumer
Protection to ensure fair representation of consumers, State and local
interests, airlines, and airports with respect to the evaluation of
aviation consumer protection programs and convene a meeting of the
Committee as soon as practicable;
(B) promote enhanced transparency and consumer safeguards, as appropriate
and consistent with applicable law, including through potential rulemaking,
enforcement actions, or guidance documents, with the aims of:
(1) enhancing consumer access to airline flight information so that
consumers can more easily find a broader set of available flights,
including by new or lesser known airlines; and
(2) ensuring that consumers are not exposed or subject to advertising,
marketing, pricing, and charging of ancillary fees that may constitute an
unfair or deceptive practice or an unfair method of competition;
(C) not later than 45 days after the date of this order, submit a report
to the Chair of the White House Competition Council, on the progress of the
Department of Transportation's investigatory and enforcement activities to
address the failure of airlines to provide timely refunds for flights
cancelled as a result of the COVID-19 pandemic;
(D) not later than 45 days after the date of this order, publish for
notice and comment a proposed rule requiring airlines to refund baggage
fees when a passenger's luggage is substantially delayed and other
ancillary fees when passengers pay for a service that is not provided;
(E) not later than 60 days after the date of this order, start
development of proposed amendments to the Department of Transportation's
definitions of ``unfair'' and ``deceptive'' in 49 U.S.C. 41712; and
(F) not later than 90 days after the date of this order, consider
initiating a rulemaking to ensure that consumers have ancillary fee
information, including ``baggage fees,'' ``change fees,'' and
``cancellation fees,'' at the time of ticket purchase;
(ii) to provide consumers with more flight options at better prices and
with improved service, and to extend opportunities for competition and
market entry as the industry evolves:
(A) not later than 30 days after the date of this order, convene a
working group within the Department of Transportation to evaluate the
effectiveness of existing commercial aviation programs, consumer
protections, and rules of the Federal Aviation Administration;
(B) consult with the Attorney General regarding means of enhancing
effective coordination between the Department of Justice and the Department
of Transportation to ensure competition in air transportation and the
ability of new entrants to gain access; and
[[Page 36996]]
(C) consider measures to support airport development and increased
capacity and improve airport congestion management, gate access,
implementation of airport competition plans pursuant to 49 U.S.C. 47106(f),
and ``slot'' administration;
(iii) given the emergence of new aerospace-based transportation
technologies, such as low-altitude unmanned aircraft system deliveries,
advanced air mobility, and high-altitude long endurance operations, that
have great potential for American travelers and consumers, yet also the
danger of early monopolization or new air traffic control problems, ensure
that the Department of Transportation takes action with respect to these
technologies to:
(A) facilitate innovation that fosters United States market leadership
and market entry to promote competition and economic opportunity and to
resist monopolization, while also ensuring safety, providing security and
privacy, protecting the environment, and promoting equity; and
(B) provide vigilant oversight over market participants.
(n) To further competition in the rail industry and
to provide accessible remedies for shippers, the Chair
of the Surface Transportation Board (Chair) is
encouraged to work with the rest of the Board to:
(i) consider commencing or continuing a rulemaking to strengthen
regulations pertaining to reciprocal switching agreements pursuant to 49
U.S.C. 11102(c), if the Chair determines such rulemaking to be in the
public interest or necessary to provide competitive rail service;
(ii) consider rulemakings pertaining to any other relevant matter of
competitive access, including bottleneck rates, interchange commitments, or
other matters, consistent with the policies set forth in section 1 of this
order;
(iii) to ensure that passenger rail service is not subject to unwarranted
delays and interruptions in service due to host railroads' failure to
comply with the required preference for passenger rail, vigorously enforce
new on-time performance requirements adopted pursuant to the Passenger Rail
Investment and Improvement Act of 2008 (Public Law 110-423, 122 Stat. 4907)
that will take effect on July 1, 2021, and further the work of the
passenger rail working group formed to ensure that the Surface
Transportation Board will fully meet its obligations; and
(iv) in the process of determining whether a merger, acquisition, or other
transaction involving rail carriers is consistent with the public interest
under 49 U.S.C. 11323-25, consider a carrier's fulfillment of its
responsibilities under 49 U.S.C. 24308 (relating to Amtrak's statutory
rights).
(o) The Chair of the Federal Maritime Commission is
encouraged to work with the rest of the Commission to:
(i) vigorously enforce the prohibition of unjust and unreasonable practices
in the context of detention and demurrage pursuant to the Shipping Act, as
clarified in ``Interpretive Rule on Demurrage and Detention Under the
Shipping Act,'' 85 Fef. Reg. 29638 (May 18, 2020);
(ii) request from the National Shipper Advisory Committee recommendations
for improving detention and demurrage practices and enforcement of related
Shipping Act prohibitions; and
(iii) consider further rulemaking to improve detention and demurrage
practices and enforcement of related Shipping Act prohibitions.
(p) The Secretary of Health and Human Services
shall:
(i) to promote the wide availability of low-cost hearing aids, not later
than 120 days after the date of this order, publish for notice and comment
a proposed rule on over-the-counter hearing-aids, as called for by section
709 of the FDA Reauthorization Act of 2017 (Public Law 115-52, 131 Stat.
1005);
(ii) support existing price transparency initiatives for hospitals, other
providers, and insurers along with any new price transparency initiatives
[[Page 36997]]
or changes made necessary by the No Surprises Act (Public Law 116-260, 134
Stat. 2758) or any other statutes;
(iii) to ensure that Americans can choose health insurance plans that meet
their needs and compare plan offerings, implement standardized options in
the national Health Insurance Marketplace and any other appropriate
mechanisms to improve competition and consumer choice;
(iv) not later than 45 days after the date of this order, submit a report
to the Assistant to the President for Domestic Policy and Director of the
Domestic Policy Council and to the Chair of the White House Competition
Council, with a plan to continue the effort to combat excessive pricing of
prescription drugs and enhance domestic pharmaceutical supply chains, to
reduce the prices paid by the Federal Government for such drugs, and to
address the recurrent problem of price gouging;
(v) to lower the prices of and improve access to prescription drugs and
biologics, continue to promote generic drug and biosimilar competition, as
contemplated by the Drug Competition Action Plan of 2017 and Biosimilar
Action Plan of 2018 of the Food and Drug Administration (FDA), including
by:
(A) continuing to clarify and improve the approval framework for generic
drugs and biosimilars to make generic drug and biosimilar approval more
transparent, efficient, and predictable, including improving and clarifying
the standards for interchangeability of biological products;
(B) as authorized by the Advancing Education on Biosimilars Act of 2021
(Public Law 117-8, 135 Stat. 254, 42 U.S.C. 263-1), supporting biosimilar
product adoption by providing effective educational materials and
communications to improve understanding of biosimilar and interchangeable
products among healthcare providers, patients, and caregivers;
(C) to facilitate the development and approval of biosimilar and
interchangeable products, continuing to update the FDA's biologics
regulations to clarify existing requirements and procedures related to the
review and submission of Biologics License Applications by advancing the
``Biologics Regulation Modernization'' rulemaking (RIN 0910-AI14); and
(D) with the Chair of the FTC, identifying and addressing any efforts to
impede generic drug and biosimilar competition, including but not limited
to false, misleading, or otherwise deceptive statements about generic drug
and biosimilar products and their safety or effectiveness;
(vi) to help ensure that the patent system, while incentivizing innovation,
does not also unjustifiably delay generic drug and biosimilar competition
beyond that reasonably contemplated by applicable law, not later than 45
days after the date of this order, through the Commissioner of Food and
Drugs, write a letter to the Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent and Trademark Office
enumerating and describing any relevant concerns of the FDA;
(vii) to support the market entry of lower-cost generic drugs and
biosimilars, continue the implementation of the law widely known as the
CREATES Act of 2019 (Public Law 116-94, 133 Stat. 3130), by:
(A) promptly issuing Covered Product Authorizations (CPAs) to assist
product developers with obtaining brand-drug samples; and
(B) issuing guidance to provide additional information for industry about
CPAs; and
(viii) through the Administrator of the Centers for Medicare and Medicaid
Services, prepare for Medicare and Medicaid coverage of interchangeable
biological products, and for payment models to support increased
utilization of generic drugs and biosimilars.
(q) To reduce the cost of covered products to the
American consumer without imposing additional risk to
public health and safety, the Commissioner of Food and
Drugs shall work with States and Indian Tribes that
[[Page 36998]]
propose to develop section 804 Importation Programs in
accordance with the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (Public Law
108-173, 117 Stat. 2066), and the FDA's implementing
regulations.
(r) The Secretary of Commerce shall:
(i) acting through the Director of the National Institute of Standards and
Technology (NIST), consider initiating a rulemaking to require agencies to
report to NIST, on an annual basis, their contractors' utilization
activities, as reported to the agencies under 35 U.S.C. 202(c)(5);
(ii) acting through the Director of NIST, consistent with the policies set
forth in section 1 of this order, consider not finalizing any provisions on
march-in rights and product pricing in the proposed rule ``Rights to
Federally Funded Inventions and Licensing of Government Owned Inventions,''
86 Fed. Reg. 35 (Jan. 4, 2021); and
(iii) not later than 1 year after the date of this order, in consultation
with the Attorney General and the Chair of the Federal Trade Commission,
conduct a study, including by conducting an open and transparent
stakeholder consultation process, of the mobile application ecosystem, and
submit a report to the Chair of the White House Competition Council,
regarding findings and recommendations for improving competition, reducing
barriers to entry, and maximizing user benefit with respect to the
ecosystem.
(s) The Secretary of Defense shall:
(i) ensure that the Department of Defense's assessment of the economic
forces and structures shaping the capacity of the national security
innovation base pursuant to section 889(a) and (b) of the William M. (Mac)
Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public
Law 116-283, 134 Stat. 3388) is consistent with the policy set forth in
section 1 of this order;
(ii) not later than 180 days after the date of this order, submit to the
Chair of the White House Competition Council, a review of the state of
competition within the defense industrial base, including areas where a
lack of competition may be of concern and any recommendations for improving
the solicitation process, consistent with the goal of the Competition in
Contracting Act of 1984 (Public Law 98-369, 98 Stat. 1175); and
(iii) not later than 180 days after the date of this order, submit a report
to the Chair of the White House Competition Council, on a plan for avoiding
contract terms in procurement agreements that make it challenging or
impossible for the Department of Defense or service members to repair their
own equipment, particularly in the field.
(t) The Director of the Consumer Financial
Protection Bureau, consistent with the pro-competition
objectives stated in section 1021 of the Dodd-Frank
Act, is encouraged to consider:
(i) commencing or continuing a rulemaking under section 1033 of the Dodd-
Frank Act to facilitate the portability of consumer financial transaction
data so consumers can more easily switch financial institutions and use
new, innovative financial products; and
(ii) enforcing the prohibition on unfair, deceptive, or abusive acts or
practices in consumer financial products or services pursuant to section
1031 of the Dodd-Frank Act so as to ensure that actors engaged in unlawful
activities do not distort the proper functioning of the competitive process
or obtain an unfair advantage over competitors who follow the law.
(u) The Director of the Office of Management and
Budget, through the Administrator of the Office of
Information and Regulatory Affairs, shall incorporate
into its recommendations for modernizing and improving
regulatory review required by my Memorandum of January
20, 2021 (Modernizing Regulatory Review), the policies
set forth in section 1 of this order, including
consideration of whether the effects on competition and
the potential for creation of barriers to entry should
be included in regulatory impact analyses.
[[Page 36999]]
(v) The Secretary of the Treasury shall:
(i) direct the Office of Economic Policy, in consultation with the Attorney
General, the Secretary of Labor, and the Chair of the FTC, to submit a
report to the Chair of the White House Competition Council, not later than
180 days after the date of this order, on the effects of lack of
competition on labor markets; and
(ii) submit a report to the Chair of the White House Competition Council,
not later than 270 days after the date of this order, assessing the effects
on competition of large technology firms' and other non-bank companies'
entry into consumer finance markets.
Sec. 6. General Provisions. (a) This order shall be
implemented consistent with applicable law and subject
to the availability of appropriations.
(b) Where not already specified, independent
agencies are encouraged to comply with the requirements
of this order.
(c) Nothing in this order shall be construed to
impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or
the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(d) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
(Presidential Sig.)
THE WHITE HOUSE,
July 9, 2021.
[FR Doc. 2021-15069
Filed 7-13-21; 8:45 am]
Billing code 3295-F1-P
