President Biden issued an expansive Executive Order on July 9 aimed at competition in the American economy. The Executive Order (EO) includes 72 different initiatives and directs more than a dozen federal agencies to consider far-reaching policy considerations that the White House believes will enhance competition and protect consumers across many industries. 

This plan will likely have a significant impact on the U.S. metalcasting industry in the following areas:

Antitrust

The order directs the Federal Trade Commission (FTC) and Department of Justice (DOJ) to reexamine previously completed mergers and review the guidelines for both horizontal and vertical mergers.

Labor Markets

• The order calls on the FTC to ban or limit non-compete agreements.
• The order encourages the FTC and DOJ to bolster existing guidance to prevent employers from sharing wage and benefit information in a manner that suppresses wages or benefits.
• It specifically calls out “labor markets” as markets that FTC and DOJ should consider in evaluating proposed mergers. The Treasury Department is directed to, within 180 days, submit a report on the impact of the current lack of competition on labor markets.

National Security

The Executive Order provides several recommendations for the Department of Defense (DoD), including submitting a report within 180 days assessing the state of competition within the defense industrial base, as well as a plan for avoiding contract terms in procurement agreements that limit the ability of DoD or service members to repair their own equipment.

Transportation

The order directs the chair of the Surface Transportation Board (STB) to take certain steps aimed at addressing rail industry consolidation and shipping prices:

• Consider undertaking a rulemaking to address reciprocal switching agreements if the Chair determines it is in the public interest or needed to provide competitive rail service.
• Consider undertaking rulemakings to address other issues regarding competitive access, including bottleneck rates, interchange commitments or other matters.
• Ensure freight railroads are giving passenger rail access without unwarranted delays or interruption consistent with existing federal law.
• In determining whether a merger, acquisition or other transaction involving rail carriers is consistent with the public interest, consider whether the subject carrier has fulfilled its responsibilities regarding Amtrak’s statutory right of access.

The EO directs the Federal Maritime Commission to take certain actions to address high shipping costs, including the consolidation of the global container shipping industry:

• Vigorously enforce the prohibition against unjust and unreasonable practices related to detention and demurrage practices.
• Request recommendations from the National Shipper Advisory Committee regarding how to improve detention and demurrage practices and enforcement of related Shipping Act prohibitions.
• Consider rulemakings to improve demurrage and detention practices and enforcement.

Health Care

The EO directs the Health and Human Services Administration to release a plan to address high prescription drug prices and price gouging.

It also directs the Food and Drug Administration to work with states that propose to develop programs to import prescription drugs from Canada.

Right-to-Repair

Many equipment manufacturers use proprietary repair tools, software, and diagnostics to prevent third parties from performing repairs and prohibit them from repairing their products or taking them to a third-party vendor by invalidating their warranties if they do.

The order directs the FTC to issue rules making it easier and cheaper to repair items by limiting manufacturers from barring self-repairs or third-party repairs of their products.

The White House Fact Sheet provides a good summary of the various policy objectives of the Executive Order. It establishes a new White House Competition Council to coordinate the White House response to anticompetitive behavior. The Council will consist of representatives from key agencies and several other independent agencies. AFS will be following developments in the coming weeks and months and weighing in with meetings and comments, as the agencies work to carry out the Administration’s far-reaching competition policy objectives.     

For additional information, contact Stephanie Salmon, AFS Washington Office, 202-452-7135, ssalmon@afsinc.org.