[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]


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                         Presidential Documents 
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  Federal Register / Vol. 86, No. 132 / Wednesday, July 14, 2021 / 
Presidential Documents  

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 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