Executive Order on Competition Tracker

No Deadline

• Commence or continue 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; § 5(t)(i)
• Enforce 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; § 5(t)(ii)

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January 5, 2022

• 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; § 5(i)(iii)

May 5, 2022

• in consultation with Federal Trade Commission
  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 and on grants, loans, and other support that may enhance access to retail markets by local and regional food enterprises; § 5(i)(iv)
  

No Deadline

• 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. § 5(i)
• Provide 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;
• Reinforce the long-standing Department of Agriculture interpretation that it is unnecessary under the Packers and Stockyards Act to demonstrate 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;
• Prohibit 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;
• Update 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
• Adopt, 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;
• 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"; § 5(i)(ii)
• in consultation with the Under Secretary of Commerce for Intellectual Property, 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. § 5(i)(v)

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July 11, 2022

• in consultation with Department of Justice and 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; § 5(r)(iii)

No Deadline

• and Department of Justice
  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 of Justice, the United States Patent and Trademark Office, and the National Institute of Standards and Technology on December 19, 2019. § 5(d)
• acting through the National Institute of Standards and Technology
  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); § 5(r)(i)
• acting through the National Institute of Standards and Technology
  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); § 5(r)(ii)

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January 5, 2022

• 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 § 5(s)(ii)
• 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; § 5(s)(iii)

No Deadline

• 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; § 5(s)(i)

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August 23, 2021

• 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; § 5(p)(iv)
• through the Food and Drug Administration (FDA)
  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; § 5(p)(vi)

November 8, 2021

• Publish for notice and comment a proposed rule on over-the-counter hearing-aids to promote the wide availability of low-cost hearing aids; § 5(p)(i)

No Deadline

• Support existing price transparency initiatives for hospitals, other providers, and insurers along with any new price transparency initiatives or changes made necessary by the No Surprises Act (Public Law 116-260, 134 Stat. 2758) or any other statutes; § 5(p)(ii)
• 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; § 5(p)(iii)
• 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) to lower the prices of and improve access to prescription drugs and biologics,: § 5(p)(v)
• 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; § 5(p)(v)(A)
• Support biosimilar product adoption by providing effective educational materials and communications to improve understanding of biosimilar and interchangeable products among healthcare providers, patients, and caregivers; § 5(p)(v)(B)
• Continue 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) to facilitate the development and approval of biosimilar and interchangeable products; § 5(p)(v)(C)
• and the Federal Trade Commission
  Identify and address 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; § 5(p)(v)(D)

• 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; 

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:

(B)  issuing guidance to provide additional information for industry about CPAs; § 5(p)(vii)(A)-(B)

• through 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; § 5(p)(viii)

• with States and Indian Tribes

  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; § 5(q)

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November 8, 2021

• in consultation with Department of the Treasury and Federal Trade Commission

  Submit a report to the Chair of the White House Competition Council addressing the current market structure and conditions of competition in the markets for beer, wine, and spirits, including an assessment of any threats to competition and barriers to new entrants; § 5(j)

January 5, 2022

• in consultation with the Department of Labor, Department of the Treasury, and Federal Trade Commission 
  Submit a report to the Chair of the White House Competition Council on the effects of lack of competition on labor markets; § 5(v)(i)

• in consultation with Department of the Treasury, Federal Reserve Board, and Federal Deposit Insurance Corporation
  Adopt a plan for the revitalization of merger oversight under the Bank Merger Act and the Bank Holding Company Act; § 5(e)

July 11, 2022

• in consultation with Department of Commerce and 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; § 5(r)(iii)

No Deadline

• and Federal Trade Commission
  Review the horizontal and vertical merger guidelines and consider whether to revise those guidelines. § 5(c)
• Consider whether to revise the Antitrust Guidance for Human Resource Professionals of October 2016. § 5(f)
• and Department of Commerce
  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 of Justice, the United States Patent and Trademark Office, and the National Institute of Standards and Technology on December 19, 2019. § 5(d)
• in consultation with the Department of Transportation
  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; § 5(m)(ii)(B)

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January 5, 2022

• in consultation with the Department of Justice, Department of the Treasury, and Federal Trade Commission 
  Submit a report to the Chair of the White House Competition Council on the effects of lack of competition on labor markets; § 5(v)(i)

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August 9, 2021

• 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; § 5(m)(i)(A)
• 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; § 5(m)(ii)(A)

August 23, 2021

• 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 § 5(m)(i)(C)
• 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; § 5(m)(i)(D)

September 7, 2021

• Start development of proposed amendments to the Department of Transportation’s definitions of "unfair" and "deceptive" in 49 U.S.C. 41712; § 5(m)(i)(E)

October 7, 2021

• 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; § 5(m)(i)(F)

No Deadline

• 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; § 5(m)(i)(B)

• in consultation with the Department of Justice
  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; § 5(m)(ii)(B)
• 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; § 5(m)(ii)(C)

• 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 . . .

(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. § 5(m)(iii) 

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November 8, 2021

• in consultation with Department of Justice and Federal Trade Commission

  Submit a report to the Chair of the White House Competition Council addressing the current market structure and conditions of competition in the markets for beer, wine, and spirits, including an assessment of any threats to competition and barriers to new entrants; § 5(j)

January 5, 2022

• in consultation with Department of Justice, Department of Labor, and Federal Trade Commission 
  Submit a report to the Chair of the White House Competition Council on the effects of lack of competition on labor markets; § 5(v)(i)

• in consultation with Federal Reserve, Federal Deposit Insurance Corporation, and Department of Justice

  Adopt a plan for the revitalization of merger oversight under the Bank Merger Act and the Bank Holding Company Act; § 5(e)

March 7, 2022

• through the Alcohol and Tobacco Tax and Trade Bureau
  Consider (i) initiating a rulemaking to update 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; § 5(k)
  

April 5, 2022

• Submit a report to the Chair of the White House Competition Council assessing the effects on competition of large technology firms’ and other non‑bank companies’ entry into consumer finance markets; § 5(v)(ii)

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No Deadline

• Adopt 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); § 5(l)(i)
• Conduct 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; § 5(l)(ii)
• Provide 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; § 5(l)(iii)
• Prohibit unjust or unreasonable early termination fees for end-user communications contracts, enabling consumers to more easily switch providers; § 5(l)(iv)
• Initiate 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; § 5(l)(v)
• Initiate 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; § 5(l)(vi)
• Initiate a rulemaking to prevent landlords and cable and Internet service providers from inhibiting tenants’ choices among providers. § 5(l)(vii)

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No Deadline

• 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 Fed. Reg. 29638 (May 18, 2020); § 5(o)(i)
• Consider further rulemaking to improve detention and demurrage practices and enforcement of related Shipping Act prohibitions. § 5(o)(iii)

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November 8, 2021

• in consultation with Department of Justice and Department of Transportation

  Submit a report to the Chair of the White House Competition Council addressing the current market structure and conditions of competition in the markets for beer, wine, and spirits, including an assessment of any threats to competition and barriers to new entrants; § 5(j)

January 5, 2022

• in consultation with Department of Justice, Department of Labor, and Department of the Treasury
  Submit a report to the Chair of the White House Competition Council on the effects of lack of competition on labor markets; § 5(v)(i)

May 5, 2022

• in consultation with Department of Agriculture
  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 and on grants, loans, and other support that may enhance access to retail markets by local and regional food enterprises; § 5(i)(iv)

July 11, 2022

• in consultation with the Department of Commerce and the Department of Justice
  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; § 5(r)(iii)

No Deadline

• 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. § 5(g)
• 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. § 5(h)

• and Department of Health and Human Services
  Identify and address 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; § 5(p)(v)(D)
• and Department of Justice
  Review the horizontal and vertical merger guidelines and consider whether to revise those guidelines. § 5(c)
• and Department of Justice
  Consider whether to revise the Antitrust Guidance for Human Resource Professionals of October 2016.  § 5(f)

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No Deadline

• through the Administrator of OIRA
  Incorporate into its recommendations for modernizing and improving regulatory review required by President Biden's 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; § 5(u)

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No Deadline

• 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; § 5(n)(i)
• 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; § 5(n)(ii)
• 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; § 5(n)(iii)
• Consider a carrier's fulfillment of its responsibilities under 49 U.S.C. 24308 (relating to Amtrak’s statutory rights) 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; § 5(n)(iv)

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No Deadline

• with the Department of Agriculture, in consultation with the Under Secretary of Commerce for Intellectual Property
  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. § 5(i)(v)

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August 9, 2021

• 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; § 4(h)

No Deadline

• 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. § 4(b)

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