FEDERAL TRADE COMMISSION (FTC)

Statement of Regulatory and Deregulatory Priorities

I. Regulatory and Deregulatory Priorities

Background

The Federal Trade Commission (FTC or Commission) is an independent agency charged by its enabling statute, the Federal Trade Commission Act (FTC Act), with protecting American consumers from "unfair methods of competition" and "unfair or deceptive acts or practices" in the marketplace. The Commission strives to ensure that consumers benefit from a vigorously competitive marketplace. The Commission's work is rooted in a belief that competition, based on truthful and non-misleading information about products and services, provides consumers the best choice of products and services at the lowest prices.

The Commission pursues its goal of promoting competition in the marketplace through two different but complementary approaches. Unfair or deceptive acts or practices injure both consumers and honest competitors alike and undermine competitive markets. Through its consumer protection activities, the Commission seeks to ensure that consumers receive accurate, truthful, and non-misleading information in the marketplace. At the same time, for consumers to have a choice of products and services at competitive prices and quality, the marketplace must be free from anticompetitive business practices. Thus, the second part of the Commission's basic mission - antitrust enforcement - is to prohibit anticompetitive mergers or other anticompetitive business practices without unduly interfering with the legitimate activities of businesses. These two complementary missions make the Commission unique insofar as it is the Nation's only Federal agency to be given this combination of statutory authority to protect consumers.

The Commission is, first and foremost, a law enforcement agency. It pursues its mandate primarily through case-by-case enforcement of the FTC Act and other statutes. In addition, the Commission is also charged with the responsibility of issuing and enforcing regulations under a number of statutes. The Commission is responsible for enforcing 16 trade regulation rules promulgated pursuant to the FTC Act. Other examples include the regulations enforced pursuant to credit, financial and marketing practice statutes[1] and to energy laws.[2] The Commission also has adopted a number of voluntary industry guides. Most of the regulations and guides pertain to consumer protection matters and are intended to ensure that consumers receive the information necessary to evaluate competing products and make informed purchasing decisions.

Commission Initiatives

The Commission protects consumers through a variety of tools, including both regulatory and non-regulatory approaches. It has encouraged industry self-regulation, developed a corporate leniency policy for certain rule violations, and established compliance partnerships where appropriate.

As detailed below, protecting consumer privacy, preventing and mitigating identity theft, containing the rising costs of health care and prescription drugs, fostering competition and innovation in cutting-edge, high-tech industries, challenging deceptive advertising and marketing, and safeguarding the interests of potentially vulnerable consumers, such as children and the financially distressed, continue to be at the forefront of the Commission's consumer protection and competition programs. By subject area, the FTC discusses some of the major workshops, reports,[3] and initiatives it has pursued since the 2014 Regulatory Plan was published.

(a) Protecting Consumer Privacy. As the nation's top enforcer on the consumer privacy beat, the FTC works to ensure that consumers can take advantage of the benefits of a dynamic and ever-changing digital marketplace without compromising their privacy. The FTC achieves that goal through civil law enforcement, policy initiatives, and consumer and business education. For example, the FTC's unparalleled experience in consumer privacy enforcement has addressed practices offline, online, and in the mobile environment by large, well-known companies and lesser-known players alike.

Data security is an important focus of the Commission's privacy work. Since 2002, the FTC has brought 53 cases against companies that have engaged in unfair or deceptive practices that the Commission alleged put consumers' personal data at unreasonable risk. The agency has been actively monitoring the mobile marketplace to safeguard data privacy and security. For instance, Credit Karma, Inc., and Fandango, LLC, settled charges that they misrepresented the security of their mobile apps and put the sensitive personal information of millions of people at risk.[4] Despite their security promises, these companies allegedly failed to take reasonable steps to secure their mobile apps, leaving people's sensitive personal information vulnerable to attackers who could intercept any of the information the apps sent or received. In addition, Snapchat, Inc., settled charges that it deceived its users when it touted an app's ability to send "snaps" that would "disappear forever" after a set time.[5] Moreover, the company's alleged failure to secure its Find Friends feature led to a breach that enabled attackers to access usernames and phone numbers for millions of users. The settlement prohibits future misrepresentations and requires the implementation of a comprehensive privacy program.

The "Start With Security" initiative helps businesses protect consumers' information through new guidance for businesses that draw on the lessons learned in the more than 50 data security cases brought by the FTC through the years, as well as a series of conferences to be held across the country aimed at small- and medium-sized businesses in various industries, with the first event held on September 9, 2015, in San Francisco, CA, and the second one to be held in Austin, TX, on November 5, 2015. Aimed at start-ups and developers, the September event brought together experts to provide information on security by design, common security vulnerabilities, strategies for secure development, and vulnerability response. The Austin event will provide similar practical tips and guidance for the Austin start-up community.

The business guidance, titled "Start with Security A Guide for Business," was published mid-2015 and lays out ten key steps to effective data security, drawn from the alleged facts in the FTC's data security cases.[6] The document is designed to provide an easy way for companies to understand the lessons learned from those previous cases. It includes references to the cases, as well as plain-language explanations of the security principles at play. In addition to the new guidance, the FTC has also introduced a one-stop website that consolidates the Commission's data security information for businesses. It can be found at www.ftc.gov/datasecurity.

On January 27, 2015, the staff of the Commission released a report titled "Internet of Things Privacy & Security in a Connected World"[7] that recommended a series of concrete steps that businesses can take to enhance and protect consumers' privacy and security, as Americans start to reap the benefits from a growing world of Internet-connected devices. The Internet of Things universe is expanding quickly, and there are now over 25 billion connected devices in use worldwide, with that number set to rise significantly as consumer goods companies, auto manufacturers, healthcare providers, and other businesses continue to invest in connected devices, according to data cited in the report. In addition to the report, the FTC also released a new publication for businesses containing advice about how to build security into products connected to the Internet of Things. "Careful Connections: Building Security in the Internet of Things" encourages companies to implement a risk-based approach and take advantage of best practices developed by security experts, such as using strong encryption and proper authentication.[8]

(b) Protecting Children. Children increasingly use the Internet for entertainment, information and schoolwork. The FTC enforces the Children's Online Privacy Protection Act (COPPA) and the COPPA Rule to protect children's privacy when they are online by putting their parents in charge of who gets to collect personal information about their preteen kids. For example, the FTC charged online review site Yelp Inc., and mobile app developer TinyCo, Inc., with improperly collecting children's information in violation of the COPPA Rule.[9] The FTC alleged that Yelp failed to implement a functional age-screen in its apps, which allowed children under 13 to register for the service, despite having an age-screen mechanism on its website. The Commission also alleged that many of TinyCo's apps, which used themes appealing to children, brightly colored animated characters, and simple language, were in fact directed at children under 13; TinyCo therefore was required to comply with the COPPA Rule when collecting children's information, such as email addresses. To resolve the Commission's allegations, Yelp paid $450,000 and TinyCo paid $300,000 in civil penalties.

The Commission is actively litigating to protect children and their parents when children use mobile apps that appeal to children and offer virtual goods for sale. On August 1, 2014, the FTC filed a court complaint alleging that Amazon.com, Inc. billed parents and other account holders for millions of dollars in unauthorized in-app charges incurred by children.[10] Amazon offers many children's apps in its app store for download to mobile devices such as the Kindle Fire. The lawsuit seeks a court order requiring refunds to consumers for the unauthorized charges and permanently banning the company from billing parents and other account holders for in-app charges without their consent. This is the FTC's third case relating to children's in-app purchases; Apple and Google both settled FTC complaints concerning the issue in 2014.[11]

(c) Protecting Seniors. The Commission works vigilantly to fight telephone scams that harm millions of Americans. The agency has aggressively used law enforcement tools[12] as well as efforts to educate consumers about these scams and to find technological solutions that will make it more difficult for scammers to operate and hide from law enforcement. FTC education and outreach programs reach tens of millions of people every year. Among them is the "Pass It On" program that provides seniors with information, in English and Spanish, on a variety of scams targeting the elderly.[13] The agency also works with the Elder Justice Coordinating Council to help protect seniors and with the AARP Foundation, whose peer counselors provided fraud-avoidance advice last year to more than a thousand seniors who had filed complaints with the FTC about certain frauds, including lottery, prize promotion, and grandparent scams. The Commission is also promoting initiatives to make it harder for scammers to fake or "spoof" their caller Identification information and the more widespread availability of technology that will block calls from fraudsters, essentially operating as a spam filter for the telephone.

(d) Protecting Financially Distressed Consumers. Even as the economy recovers, some consumers continue to face financial challenges. The FTC acts to ensure that consumers are protected from deceptive and unfair credit practices and get the information they need to make informed financial choices. The Commission has continued its enforcement efforts by bringing law enforcement actions to curb deceptive and unfair practices in mortgage rescue, debt relief, auto financing and debt collection.

In June 2015, the Commission initiated a series of Debt Collection Dialogue hearings, with the first one in Buffalo co-hosted by the New York Attorney General's Office. The Buffalo event drew nearly 200 participants, most of them collection industry members. The second hearing was held on September 29, 2015, in Dallas, Texas. On November 18, 2015, the Commission plans to co-host the Atlanta event with the Georgia Attorney General's Office. At each event, the FTC and its state and federal law enforcement partners will discuss recent enforcement actions, consumer complaints about debt collection practices, and compliance issues. The speakers will welcome questions and comments from collection industry members and others who attend.

(e) Fighting Identity Theft. The issue of identity theft has been the top consumer complaint reported to the FTC for the past 15 years, and in 2014, the Commission received more than 330,000 complaints from consumers who were victims of identity theft. On May 14, 2015, the FTC launched IdentityTheft.gov, a new resource that makes it easier for identity theft victims to report and recover from identity theft. A Spanish version of the site is also available at www.RobodeIdentidad.gov. The new website provides an interactive checklist that walks people through the recovery process and helps them understand which recovery steps should be taken upon learning their identity has been stolen. It also provides sample letters and other helpful resources. In addition, the site offers specialized tips for specific forms of identity theft, including tax-related and medical identity theft. The site also has advice for people who have been notified that their personal information was exposed in a data breach.

Tax identity theft is increasingly a growing share of identity theft-related complaints. In January 2015, the FTC sponsored a Tax Identity Theft Awareness Week including, hosting a webinar, bilingual Twitter chats, and several Tax Identity Theft Awareness Week events across the country to raise awareness about tax identity theft and give people tips about how to respond to it. The FTC's Tax Identity Theft Awareness Week website[14] provided material for regional events held in the states with the highest reported rates of identity theft.

(f) Ensuring Consumers Benefit from New Technologies While Also Protecting Them.

  • Mobile Cramming. The widespread adoption of mobile devices has provided many important benefits to consumers, including the convenience of paying for goods and services using a mobile phone. The Commission continues to prosecute crammers-third parties that place unwanted charges on consumers' phone bills-and this past year focused its attention on the role played by mobile carriers. AT&T Mobility, LLC and T-Mobile USA, Inc. agreed to pay $80 million and at least $90 million, respectively, to settle claims that they charged customers hundreds of millions of dollars for third-party subscriptions (such as ringtones and text messages) and pocketed a significant percentage of the charges.[15]

  • Cross Device Tracking. The Commission will host a workshop on Nov. 16, 2015, to examine the privacy issues around the tracking of consumers' activities across their different information technology devices for advertising and marketing purposes, a practice known as "cross-device tracking." As consumers use an increasingly diverse array of devices, from smart phones to tablets to wearable devices, they interact with platforms, applications, software and publishers in ways that were impossible to conceive even just a few years ago. The workshop will explore a number of questions about the potential benefits to consumers of effective cross-device tracking and examine the potential privacy and security risks.

    (g) Promoting Competition in Health Care. The FTC continues to work to eliminate anticompetitive settlements featuring payments by branded drug firms to generic competitors to keep generic drugs off the market (so-called, "pay-for-delay" agreements). It's a practice where the pharmaceutical industry wins, but consumers lose. The brand company protects its drug franchise, and the generic competitor shares in the monopoly profits preserved by avoiding competition. In a significant victory on June 17, 2013, the U.S. Supreme Court held that pay-for-delay agreements between brand and generic drug companies are subject to antitrust scrutiny under an antitrust "rule of reason" analysis. FTC v. Actavis, Inc., 570 U.S. 756 (2013). Then, on June 17, 2015, the U.S. District Court for the Eastern District of Pennsylvania approved the Federal Trade Commission's record-setting $1.2 billion settlement with Cephalon Inc., which also prohibits Cephalon and the world's largest generic manufacturer, Teva Pharmaceutical Industries Ltd., which acquired Cephalon in 2012, from entering into most kinds of pay-for-delay deals. The underlying case against Cephalon involved paying four generic drug makers to hold off on launching their own version of the narcolepsy treatment drug Provigil.[16]

    The FTC now has two active pay-for-delay litigations underway in federal courts. Both of them involve the blockbuster male testosterone replacement drug Androgel, including the Actavis case on remand to the U.S. District Court for the Northern District of Georgia and FTC v. AbbVie, Inc., in the U.S. District Court for the Eastern District of Pennsylvania.[17]

    Another key Commission enforcement priority is preventing mergers that would give health care providers leverage to raise rates charged to commercial health care plans for vital services. The Commission obtained a significant victory for consumers when the Ninth Circuit Court of Appeals upheld a lower court ruling that the combination of the two largest providers of adult primary care physician services in the Nampa, Idaho area would substantially reduce competition.[18] The decision upheld a district court decision, following an 18-day trial, that the St. Luke's Hospital/Saltzer Group merger violated the antitrust laws because it increased St. Luke's ability to demand higher reimbursement rates for its affiliated doctors from commercial health plans without offering benefits that could not be achieved in ways with less of an impact on competition. Moreover, in April 2014, in the first appellate decision in a health care provider merger in 15 years, the U.S. Court of Appeals for the Sixth Circuit upheld the Commission's 2012 decision finding that ProMedica Health System, Inc.'s acquisition of a rival, St. Luke's Hospital in the Toledo, Ohio area, violated the antitrust laws. The Commission's order requires ProMedica to divest St. Luke's Hospital to an FTC-approved buyer.

    (h) Promoting Competition in FoodService Distribution Industry. Following a June 23, 2015 ruling by the U.S. District Court for the District of Columbia granting the Federal Trade Commission's request for a preliminary injunction, Sysco and US Foods abandoned their proposed merger, and the Commission dismissed its related administrative complaint.[19] FTC Chairwoman Ramirez commented, "This proposed merger between the country's two largest foodservice distributors would have likely increased prices paid by restaurants, hotels, cafeterias, and hospitals across the country for food products and related services, and ultimately the prices paid by people eating at those establishments. The FTC is committed to maintaining vigorous competition in markets like this one that directly impact prices consumers pay for everyday purchases."

    (i) State Professional Boards. The FTC works to promote competition across the economy and advocates on behalf of Americans to help prevent occupational licensing requirements, which now govern a significant and growing segment of the economy, from unduly suppressing pro-consumer competition. On February 25, 2015, the Supreme Court affirmed the Commission's position in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015), by ruling that a state may not give private market participants unsupervised authority to suppress competition even if they act through a formally designated "state agency." In this case, the North Carolina dental board's members, primarily dentists, were drawn from the very occupation they regulate, and they barred non-dentists from offering competing teeth whitening services to consumers. The Court's decision makes clear that state agencies constituted in this manner are subject to the federal antitrust laws unless the state's political processes explicitly authorize and supervise market-related activities by the state agencies.

    (j) Fostering Innovation & Competition. For more than two decades, the Commission has examined difficult issues at the intersection of antitrust and intellectual property law-issues related to innovation, standard-setting, and patents. The Commission's work in this area is grounded in the recognition that intellectual property and competition laws share the fundamental goals of promoting innovation and consumer welfare. The Commission has authored several seminal reports on competition and patent law and conducted workshops to learn more about emerging practices and trends.

    For instance, the FTC is currently using its authority under Section 6(b) of the Federal Trade Commission Act to explore the impact of patent assertion entity (PAE) activities. Last year, the FTC received authority from the Office of Management and Budget to issue compulsory process orders to PAEs and other industry participants to develop a better understanding of PAE business models. The FTC currently is analyzing data received from respondents, and plans to issue a report summarizing its findings.

    (k) Advertising for Homeopathic Products. The Commission hosted a public workshop on September 21, 2015, that examined advertising for over-the-counter (OTC) homeopathic products. During the last few decades, the homeopathic drug industry in the United States has grown considerably from a multimillion-dollar to a multibillion-dollar market. In that time, the homeopathic drug market has shifted from one based primarily on formulations prescribed for an individual user to mass-market formulations widely advertised and sold nationwide in major retail stores. Because of rapid growth in the marketing and consumer use of homeopathic products, the FTC hosted the workshop to evaluate the advertising for such products. The workshop brought together a variety of stakeholders, including medical professionals, industry representatives, consumer advocates, and government regulators.

    (l) Alcohol Advertising. The Commission continues to support and monitor industry self-regulation of alcohol marketing to reduce underage targeting. During the Spring of 2014, the FTC released its fourth and most recent report on self-regulation in the alcohol industry, which set out recommendations to further limit alcohol marketing to minors.[20] The Commission also continues to promote the "We Don't Serve Teens" consumer education program, supporting the legal drinking age.[21]

    (m) Energy Prices. Few issues are more important to consumers and businesses than the prices they pay for gasoline to run their vehicles and energy to heat and light their homes and businesses. Given the impact of energy prices on consumer budgets, the energy sector continues to be a major focus of FTC law enforcement and study. Accordingly, the FTC works to maintain competition in energy industries, invoking all the powers at its disposal-including monitoring industry activities, investigating possible antitrust violations, prosecuting cases, and conducting studies-to protect consumers from anticompetitive conduct in the industry.[22] For example, the Commission recently challenged a proposed acquisition involving two energy companies supplying gasoline in Hawaii. In an administrative complaint issued with a negotiated settlement of charges, the Commission alleged that Par Petroleum's acquisition of Mid Pac Petroleum would likely have substantially lessened competition in the bulk supply of Hawaii-grade gasoline blendstock-which is gasoline before it is blended with ethanol to make finished gasoline.[23] In view of the fundamental importance of oil, natural gas, and other energy resources to the overall vitality of the United States and world economy, we expect that FTC review and oversight of the oil and natural gas industries will remain a centerpiece of our work for years to come.

    (n) Remedy Study. The FTC is studying the effectiveness of the Commission's orders in merger cases where it required a divestiture or other remedy. The study will update and expand on the divestiture study the FTC issued in 1999. The new study, which was cleared by the Office of Management and Budget on August 12, 2015, will focus on 90 merger orders issued by the Commission between 2006 and 2012.[24]

    (o) Protecting Consumers from Cross-Border Harm. The FTC continues to develop international enforcement cooperation to combat cross-border consumer fraud. The agency has used its statutory authority under the U.S. SAFE WEB Act and complementary tools to share evidence and provide investigative assistance. The agency also continues to participate actively in the International Consumer Protection and Enforcement Network (ICPEN), acting as the network Secretariat and working with foreign counterparts on www.econsumer.gov, a website in eight languages for filing international consumer complaints. The FTC has expanded its international complaints reporting to include worldwide data by region, and is working to share more such information with foreign law enforcement counterparts. In addition, FTC staff cooperates with foreign criminal enforcers through the International Mass Marketing Fraud Working Group, and with spam and cybercrime enforcers through the "London Action Plan" network.

    The FTC also continues to advocate for global interoperability and strong privacy enforcement. The agency has brought at least 39 enforcement actionsto support the U.S.-EU Safe Harbor Framework ("Safe Harbor") for cross-border data transfers. In light of the European Court of Justice's October 6, 2015 decision regarding Safe Harbor, the Commission will continue to work together with the U.S. Department of Commerce and European authorities to develop effective solutions that protect consumer privacy with respect to cross-border data transfers. The agency also continues to strengthen enforcement ties with foreign privacy counterparts. The FTC pursues these relationships both bilaterally, this year for example signing a Memorandum of Understanding with the Dutch data protection authority, and multilaterally, through networks like the Global Privacy Enforcement Network (GPEN) and GPEN Alert.[25]

    The FTC strives to promote sound approaches to common issues by building relationships with sister agencies around the world. With over 130 jurisdictions enforcing competition laws, the FTC continues to lead efforts to develop strong mutual enforcement cooperation and sound policy internationally. For example, the FTC co-leads the International Competition Network's (ICN) Agency Effectiveness Working Group and its investigative process initiative. This project resulted in the ICN's adoption of Guidance on Investigative Process, which is the most comprehensive agency-led effort to date to articulate guidance on investigative principles and practices that promote procedural fairness and effective enforcement in the areas of transparency, meaningful engagement with parties, and confidentiality in antitrust investigations, The FTC also was a key drafter of the recently adopted Recommendation of the Organization for Economic Cooperation and Development (OECD) on international cooperation in competition investigations.

    In fiscal year 2014, the Commission coordinated with antitrust agencies in 37 investigations, and it is on target to surpass that number in 2015. This included transactions such as Medtronic's acquisition of Covidien, in which we worked with antitrust agencies in multiple jurisdictions, including Canada, China, the European Union, Japan, and Mexico, to reach consistent results.[26] The FTC also participated in the U.S.-China Joint Committee on Commerce and Trade and Strategic and Economic Dialogue teams that recently negotiated commitments with China, including with regard to procedural fairness in anti-monopoly law proceedings. The FTC also played an active role in the Trans-Pacific Partnership and Transatlantic Trade and Investment Partnership agreement that was reached on October 5, 2015 after five years of negotiations.

    (p) Self-Regulatory and Compliance Initiatives with Industry. The Commission continues to engage industry in compliance partnerships in the funeral and franchise industries. Specifically, the Commission's Funeral Rule Offender Program, conducted in partnership with the National Funeral Directors Association, is designed to educate funeral home operators found in violation of the requirements of the Funeral Rule, 16 CFR 453, so that they can meet the rule's disclosure requirements. More than 485 funeral homes have participated in the program since its inception in 1996. In addition, the Commission established the Franchise Rule Alternative Law Enforcement Program in partnership with the International Franchise Association (IFA), a nonprofit organization that represents both franchisors and franchisees. This program is designed to assist franchisors found to have a minor or technical violation of the Franchise Rule, 16 CFR 436, in complying with the rule. Violations involving fraud or other section 5 violations are not candidates for referral to the program. The IFA teaches the franchisor how to comply with the rule and monitors its business for a period of years. Where appropriate, the program offers franchisees the opportunity to mediate claims arising from the law violations. Since December 1998, 21 companies have agreed to participate in the program.

    Rulemakings and Studies Required by Statute

    Congress has enacted laws requiring the Commission to undertake rulemakings and studies. This section discusses required rules and studies. The final actions section below describes actions taken on the required rulemakings and studies since the 2014 Regulatory Plan was published.

    FACTA Rules. The Commission has issued all of the rules required by FACTA (Fair and Accurate Credit Transactions Act). These rules are codified in several parts of 16 CFR 602 et seq., amending or supplementing regulations relating to the Fair Credit Reporting Act.

    FACTA Section 215 Study on Homeowners Insurance and Credit Scores. On March 27, 2009, the Commission issued 6(b) compulsory information requests to the nine largest private providers of homeowner insurance in the nation. The purpose was to help the FTC collect data for its study on the effects of credit-based scores in the homeowner insurance market, a study mandated by section 215 of FACTA. During the summer and fall of 2009, these nine insurers submitted responses to the Commission's requests. FTC staff examined the large policy-level and quote-level data files included in these submissions (containing millions of policies and quotes) and selected a sample for the study. The insurance companies then worked with their vendor to ensure the security of delivering the sample's personally identifiable information (PII) data set to the FTC's own and separate vendor of credit history information. That data was sent to the FTC's vendor, which then sent the credit history data for the sample, stripped of any PII, to the FTC. The FTC's vendor also sent PII data to the Social Security Administration, which in November 2014 provided the FTC with race and ethnicity data for the sample, which is essential for the Report. FTC Bureau of Economics staff expects to have a final draft of the Report ready to circulate to the Commission by the end of the 2015 calendar year. This study is not affected by the Consumer Financial Protection Act.

    FACTA Section 319 Study on Improving Accuracy of Consumer Credit Reports. Section 319 of FACTA requires the FTC to study the accuracy and completeness of information in consumers' credit reports and to consider methods for improving the accuracy and completeness of such information. Section 319 of the Act also requires the Commission to issue a series of biennial reports to Congress over a period of 11 years. In January 2015, the Commission issued the sixth and final report; a follow-up study of the credit report accuracy study issued by the FTC in 2012 that examined how many consumers had errors on at least one of three nationwide credit reports. The follow-up study issued in 2015 found that 37 percent of the follow-up study participants who originally disputed errors now accepted the disputed information as correct. The remaining participants believed the disputed information was still incorrect and half of those consumers planned to continue their dispute with the appropriate credit reporting agency. The final study recommends that credit reporting agencies (CRAs) review and improve the process they use to notify consumers about the results of dispute investigations, and that CRAs continue to explore efforts to educate consumers regarding their rights to review their credit reports and dispute inaccurate information.

    Retrospective Review of Existing Regulations

    In 1992, the Commission implemented a program to review its rules and guides regularly. The Commission's review program is patterned after provisions in the Regulatory Flexibility Act, 5 USC 601-612. Under the Commission's program, rules are reviewed on a 10-year schedule. For many rules, this has resulted in more frequent reviews than are generally required by section 610 of the Regulatory Flexibility Act. This program is also broader than the review contemplated under the Regulatory Flexibility Act, in that it provides the Commission with an ongoing systematic approach for seeking information about the costs and benefits of its rules and guides and whether there are changes that could minimize any adverse economic effects, not just a "significant economic impact upon a substantial number of small entities." 5 USC 610.

    As part of its continuing 10-year review plan, the Commission examines the effect of rules and guides on small businesses and on the marketplace in general. These reviews may lead to the revision or rescission of rules and guides to ensure that the Commission's consumer protection and competition goals are achieved efficiently and at the least cost to business. In a number of instances, the Commission has determined that existing rules and guides were no longer necessary or in the public interest. Most of the matters currently under review pertain to consumer protection and are intended to ensure that consumers receive the information necessary to evaluate competing products and make informed purchasing decisions. Pursuant to this program, the Commission has rescinded 37 rules and guides promulgated under the FTC's general authority and updated dozens of others since the early 1990s.

    In light of Executive Orders 13563 and 13579, the FTC continues to take a fresh look at its long-standing regulatory review process. The Commission is taking a number of steps to ease burdens on business and promote transparency in its regulatory review program:

    • The Commission recently issued a revised 10-year review schedule (see next paragraph below) and is accelerating the review of a number of rules and guides in response to recent changes in technology and the marketplace. The Commission is currently reviewing more than 15 of the 65 rules and guides within its jurisdiction.

    • The Commission continues to request and review public comments on the effectiveness of its regulatory review program and suggestions for its improvement.

    • The FTC maintains a Web page at http://www.ftc.gov/regreview that serves as a one-stop shop for the public to obtain information and provide comments on individual rules and guides under review as well as the Commission's regulatory review program generally.

    In addition, the Commission's 10-year periodic review schedule includes initiating reviews for the following rules and guides (80 FR 5713, Feb. 3, 2015) during 2015:

    (1) Contact Lens Rule, 16 CFR 315,

    (2) Ophthalmic Practice Rules, 16 CFR 456, and

    (3) Preservation of Consumers' Claims and Defenses Rule (Holder in Due Course Rule) 16 C.F.R. 433,

    and during 2016:

    (4) Standards for Safeguarding Customer Information, 16 CFR 314,

    (5) CAN-SPAM Rule, 16 CFR 316,

    (6) Labeling and Advertising of Home Insulation, 16 CFR 460, and

    (7) Disposal of Consumer Report Information and Records, 16 CFR 682.

    As set out below under Ongoing Rule and Guide Reviews, the Commission recently initiated reviews of the Hobby Rules, 16 CFR 304, the Telemarketing Sales Rule (TSR), 16 CFR 308, the Contact Lens Rule, 16 CFR 315, and the Eyeglass Rule, 16 CFR 456.

    Ongoing Rule and Guide Reviews

    The Commission is continuing review of a number of rules and guides, which are discussed below.

    (a) Rules

    Premerger Notification Rules and Report Form (or HSR Rules), 16 CFR 801-803. The Premerger Office is considering amendments to the Instructions to the HSR Form to update information related to NAICS (North American Industry Classification System) codes and recent rule changes and to allow the submission of filings on electronic media. The proposed amendments may be issued during the fourth quarter of 2015. The Premerger Office is also considering amendments to the HSR Rules regarding standards for the valuation of potentially reportable transactions. The proposed amendments may be issued during the second quarter of 2016.

    Fuel Rating Rule, 16 CFR 306. First issued in 1979, the Fuel Rating Rule (or Automotive Fuel Ratings, Certification and Posting Rule) enables consumers to buy gasoline with an appropriate octane rating for their vehicle and establishes standard procedures for determining, certifying, and posting octane ratings. On March 27, 2014, the Commission proposed amendments to the Rule that would adopt and revise rating, certification, and labeling requirements for blends of gasoline with more than 10 percent ethanol and would allow an alternative octane rating method that would lower compliance costs. 79 FR 18850. The comment period closed on July 2, 2014. In the middle of November 2015, the Commission announced final rule amendments that require entities rate and certify all ethanol fuels to provide useful information to consumers about ethanol concentration and suitability for their cars and engines. Responding to the comments, the final amendments provide greater flexibility for businesses to comply with the ethanol labeling requirements, and do not adopt the alternative octane rating method proposed in the 2014 Notice of Proposed Rulemaking. Federal Register publication is expected by December 2015.

    Energy Labeling Rule, 16 CFR 305. The Energy Labeling Rule is officially known as the Rule Concerning Disclosures Regarding Energy Consumption and Water Use of Certain Home Appliances and Other Products Required Under the Energy Policy and Conservation Act. On November 2, 2015, the Commission issued proposed amendments to the Rule to create requirements related to a new label database on the Department of Energy's website, redesign ceiling fan labels, improve and update the comparability ranges for refrigerator labels, revise central air conditioner labels in response to new Department of Energy enforcement requirements, improve water heater labels, and update current plumbing disclosures. 80 FR 67351. The comment period will close on January 11, 2016. [27]

    Telemarketing Sales Rule (TSR), 16 CFR 308. Anti-Fraud Provisions-On May 21, 2013, the Commission proposed "Anti-Fraud" amendments to the TSR concerning, among other things, the misuse of novel payment methods by telemarketers and sellers. 78 FR 41200 (July 9, 2013). After a short extension, the comment period closed on August 8, 2013. In the middle of November 2015, the Commission announced a final rule action containing "Anti-Fraud" amendments. Federal Register publication is anticipated by December 2015.

    Periodic Rule Review-On August 11, 2014, the Commission initiated periodic review of the TSR as set out on the 10-year review schedule. 79 FR 46732. The comment period as extended closed on November 13, 2014. 79 FR 61267 (Oct. 10, 2014). Staff anticipates making a recommendation to the Commission by the end of 2015.

    Privacy Rule, 16 CFR 313. The Privacy Rule or Privacy of Consumer Financial Information Rule requires among other things that certain motor vehicle dealers provide an annual disclosure of their privacy policies to their customers by hand delivery, mail, electronic delivery, or through a website, but only with the consent of the consumer. On June 24, 2015, the Commission proposed amending the Rule to allow motor vehicle dealers instead to notify their customers that a privacy policy is available on their website, under certain circumstances. 80 FR 36267. The proposed amendment would also revise the scope and definitions in the Rule in light of the transfer of part of the Commission's rulemaking authority to the Consumer Financial Protection Bureau in the Dodd-Frank Wall Street Reform and Consumer Protection Act. The comment period closed on August 31, 2015. Staff anticipates that the Commission will issue a final rule amendment by early 2016.

    Hobby Rules, 16 CFR 304. As part of the systematic rule review process, on July 14, 2014, the Commission requested public comments on, among other things, the economic impact and benefits of the Hobby Rules (Rules and Regulations under the Hobby Protection Act); possible conflict between the Rules and State, local, or other Federal laws or regulations; and the effect on the Rules of any technological, economic, or other industry changes. 79 FR 40691. The comment period closed on September 22, 2014. The Hobby Protection Act, 16 U.S.C. sections 2101-2106, prohibits manufacturing or importing imitation numismatic and collectible political items unless they are marked in accordance with regulations prescribed by the Federal Trade Commission. The implementing Rules prescribe that imitation political items-such as buttons, posters or coffee mugs-must be marked with the calendar year in which they were manufactured, and imitation numismatic items-including coins, tokens and paper money-must be marked with the word "copy." Staff anticipates sending a recommendation to the Commission by early 2016.

    Care Labeling Rule, 16 CFR 423. Promulgated in 1971, the Rule on Care Labeling of Textile Apparel and Certain Piece Goods as Amended (the Care Labeling Rule) makes it an unfair or deceptive act or practice for manufacturers and importers of textile wearing apparel and certain piece goods to sell these items without attaching care labels stating "what regular care is needed for the ordinary use of the product." The Rule also requires that the manufacturer or importer possess, prior to sale, a reasonable basis for the care instructions and allows the use of approved care symbols in lieu of words to disclose care instructions. After reviewing the comments from a periodic rule review (76 FR. 41148; July 13, 2011), the Commission concluded on September 20, 2012, that the Rule continued to benefit consumers and would be retained, and sought comments on potential updates to the Rule, including changes that would: allow garment manufacturers and marketers to include instructions for professional wetcleaning on labels; permit the use of ASTM Standard D5489-07, "Standard Guide for Care Symbols for Care Instructions on Textile Products," or ISO 3758:2005(E), "Textiles-Care labeling code using symbols," in lieu of terms; clarify what can constitute a reasonable basis for care instructions; and update the definition of "dryclean." 77 FR 58338. On March 28, 2014, the Commission hosted a public roundtable in Washington, DC, that analyzed proposed changes to the Rule. Staff anticipates forwarding a recommendation to the Commission by fall 2015.

    Used Car Rule, 16 CFR 455. The Used Motor Vehicle Trade Regulation Rule ("Used Car Rule"), 16 CFR 455, sets out the general duties of a used vehicle dealer; requires that a completed Buyers Guide be posted at all times on the side window of each used car a dealer offers for sale; and mandates disclosure of whether the vehicle is covered by a dealer warranty and, if so, the type and duration of the warranty coverage, or whether the vehicle is being sold "as is-no warranty." The Commission published a notice seeking public comments on the effectiveness and impact of the rule. See 73 FR 42285 (July 21, 2008). The comment period, as extended and then reopened, ended on June 15, 2009. In response to comments, the Commission published a Notice of Proposed Rulemaking on December 17, 2012 (See 77 FR 74746) and a final rule revising the Spanish translation of the window form on December 12, 2012. See 77 FR 73912. The extended comment period on the NPRM ended on March 13, 2012. The Commission issued a Supplemental NPRM on November 28, 2014. 79 FR 70804. Staff anticipates forwarding a recommendation to the Commission by the end of 2015.

    Contact Lens Rule, 16 CFR 315, and Eyeglass Rule, 16 CFR 456: As part of the systematic rule review process, on September 3, 2015, the Commission issued Federal Register notices seeking public comments about the Contact Lens Rule and the Eyeglass Rule (or Trade Regulation Rule on Ophthalmic Practice Rules). 80 FR 53272 (Contact Lens Rule) and 80 FR 53274 (Eyeglass Rule). The comment period extended until October 26, 2015. The Contact Lens Rule requires contact lens prescribers to provide prescriptions to their patients upon the completion of a contact lens fitting, and verify contact lens prescriptions to contact lens sellers authorized by consumers to seek such verification. Sellers may provide contact lenses only in accordance with a valid prescription that is directly presented to the seller or verified with the prescriber. The Eyeglass Rule requires that an optometrist or ophthalmologist must give the patient, at no extra cost, a copy of the eyeglass prescription immediately after the examination is completed. The Rule also prohibits optometrists and ophthalmologists from conditioning the availability of an eye examination, as defined by the Rule, on a requirement that the patient agrees to purchase ophthalmic goods from the optometrist or ophthalmologist.

    Safeguards Rule (or Standards for Safeguarding Customer Information), 16 CFR 314: In 2016, the Commission plans to initiate periodic review of the Safeguards Rule as part of its ongoing systematic review of all rules and guides. The Safeguards Rule, as directed by the Gramm-Leach-Bliley Act (GLB), requires each financial institution to develop a written information security program that is appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of the customer information at issue.

    (b) Guides

    Jewelry Guides, 16 CFR 23. The Commission sought public comments on its Guides for the Jewelry, Precious Metals, and Pewter Industries, which are commonly known as the Jewelry Guides. 77 FR 39202 (July 2, 2012). Since completing its last review of the Jewelry Guides in 1996, the Commission revised sections of the Guides and addressed other issues raised in petitions from jewelry trade associations. The Guides explain to businesses how to avoid making deceptive claims about precious metal, pewter, diamond, gemstone, and pearl products and when they should make disclosures to avoid unfair or deceptive trade practices. The comment period initially set to close on August 27, 2012, was subsequently extended until September 28, 2012. Staff also conducted a public roundtable to examine possible modifications to the Guides in June 2013. The Commission is currently considering a staff recommendation and expects to take further action by early 2016.

    Final Actions

    Since the publication of the 2014 Regulatory Plan, the Commission has issued the following final rules or taken other actions to close other rulemaking proceedings.

    The Fair Packaging and Labeling Act (FPLA) Rules, 16 CFR 500-502. In November 2015, the Commission concluded its periodic review of the FLPA Rules and issued final rule amendments that modernized the place-of-business listing requirement to incorporate online resources, eliminated obsolete references to commodities advertised using the terms "cents off," "introductory offer" and "economy size," and incorporated a more comprehensive metric chart. [Rule Review and Request for Comments. 79 FR 15272 (Mar. 19, 2014)] [NPRM, 80 FR 5491 (Feb. 2, 2015)]. The changes are effective 30 days after the date of publication in the Federal Register. The FPLA requires consumer commodities to be marked with statements of: (1) identity; (2) net quantity of contents; and (3) name and place of the business of manufacturer, packer, or distributor. These requirements serve FPLA's stated purpose of "enabling consumers to obtain accurate information as to the quantity of the contents and ... to facilitate value comparisons."

    Consumer Warranty Rules, 16 CFR 701-703. On July 20, 2015, the Commission concluded its review of the Interpretations, Rules, and Guides under the Magnuson-Moss Warranty Act and announced it would keep the Rules and Guides in their present form (Rules at 16 CFR 701-703; Guides at 16 CFR 239) while modifying the Interpretations in 16 CFR 700.10 and 700.11(a). See 80 FR 42710 (Final Rule) (July 20, 2015); 76 FR 52596 (Rule Review; Request for Comments) (Aug. 23, 2011). The Commission revised Part 700.10 of the Interpretations to clarify that implied tying - warranty language that implies to a consumer that warranty coverage is conditioned on the use of select parts or service - is deceptive. It also revised Part 700.10 to state that, to the extent that the Warranty Act's service contract provisions apply to the insurance business, they are effective if they do not interfere with state laws regulating the business of insurance. For more background, the Rule Governing the Disclosure of Written Consumer Product Warranty Terms and Conditions, 16 CFR 701 (Rule 701) establishes requirements for warrantors for disclosing the terms and conditions of written warranties on consumer products actually costing the consumer more than $15.00. The Rule Governing the Pre-Sale Availability of Written Warranty Terms, 16 CFR 702 (Rule 702), requires sellers and warrantors to make the terms of a written warranty available to the consumer prior to sale. The Rule Governing Informal Dispute Settlement Procedures (IDSM), 16 CFR 703 (Rule 703), establishes minimum requirements for those informal dispute settlement mechanisms that are incorporated by the warrantor into its consumer product warranty. By incorporating the IDSM into the warranty, the warrantor requires the consumer to use the IDSM before pursuing any legal remedies in court. The review also included the related Guides for the Advertising of Warranties and Guarantees, 16 CFR 239, and the Interpretations of Magnuson-Moss Warranty Act, 16 CFR 700.

    Cooling Off Rule, 16 CFR 429: On January 9, 2015, the Commission amended the Cooling-Off Rule (or Trade Regulation Rule Concerning Cooling Off Period for Sales Made at Homes or at Certain Other Locations), by increasing the exclusionary limit for all door-to-door sales at locations other than a buyer's residence from $25 up to $130. Under the final rule, the revised definition of door-to-door sale distinguishes between sales at a buyer's residence and those at other locations. The revised definition retains coverage for sales made at a buyer's residence that have a purchase price of $25 or more. 80 FR 1329 (Jan. 9, 2015). The final rule amendment was effective on March 13, 2015.

    The Unavailability Rule, 16 CFR 424: On November 19, 2014, the Commission announced the completion of its review of the Unavailability Rule (or Rule on Retail Food Store Advertising and Marketing Practices) and the retention of the Rule in its current form. [Final Rule, 79 FR 70053 (Nov. 25, 2014); ANPRM, 76 FR 51308 (Aug. 12, 2011)]. The Unavailability Rule states that it is a violation of Section 5 of the Federal Trade Commission Act for retail stores of food, groceries, or other merchandise to advertise products for sale at a stated price if those stores do not have the advertised products in stock and readily available to customers during the effective period of the advertisement, unless the advertisement clearly discloses that supplies of the advertised products are limited or are available only at some outlets.

    Energy Labeling Rule, 16 CFR 305: On December 29, 2014, the Commission issued a final rule updating label requirements for heating and cooling equipment and removed information from furnace labels about regional conservation standards. 79 FR 77868. The amendments were effective on April 6, 2015.[28] On November 2, 2015, the Commission issued final rule amendments to expand coverage of the Lighting Facts label, require room air conditioner labels on packaging instead of the units themselves, enhance the durability of appliance labels, and improve plumbing disclosure requirements. 80 FR 67285. This action completed the Commission's recent regulatory review of the Energy Labeling Rule.

    Summary

    In both content and process, the FTC's ongoing and proposed regulatory actions are consistent with the President's priorities. The actions under consideration inform and protect consumers, while minimizing the regulatory burdens on businesses. The Commission will continue working toward these goals. The Commission's 10-year review program is patterned after provisions in the Regulatory Flexibility Act and complies with the Small Business Regulatory Enforcement Fairness Act of 1996. The Commission's 10-year program also is consistent with section 5(a) of Executive Order 12866, which directs executive branch agencies to develop a plan to reevaluate periodically all of their significant existing regulations. 58 FR 51735 (Sept. 30, 1993). In addition, the final rules issued by the Commission continue to be consistent with the President's Statement of Regulatory Philosophy and Principles, Executive Order 12866, section 1(a), which directs agencies to promulgate only such regulations as are, inter alia, required by law or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public.

    The Commission continues to identify and weigh the costs and benefits of proposed actions and possible alternative actions and to receive the broadest practicable array of comment from affected consumers, businesses, and the public at large. In sum, the Commission's regulatory actions are aimed at efficiently and fairly promoting the ability of "private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people." Executive Order 12866, section 1.

    II. Regulatory and Deregulatory Actions

    The Commission has no proposed rules that would be a "significant regulatory action" under the definition in Executive Order 12866.[29] The Commission has no proposed rules that would have significant international impacts under the definition in Executive Order 13609. Also, there are no international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations under Executive Order 13609.

    [1] For example, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) (15 U.S.C. sections 7701-7713) and the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. sections 6101-6108).

    [2] For example, the Energy Policy Act of 1992 (106 Stat. 2776, codified in scattered sections of the U.S. Code, particularly 42 U.S.C. section 6201 et seq. and the Energy Independence and Security Act of 2007 (EISA)).

    [3] The FTC also prepares a number of annual and periodic reports on the statutes it administers. These are not discussed in this plan.

    [4] In the Matter of Credit Karma, Docket No. C-4480, Decision and Order, August 13, 2014; In the Matter of Fandango, Docket No. C-4481, Decision and Order, August 13, 2014.

    [5] In the Matter of Snapchat, Docket No. C- 4501, Decision and Order, December 23, 2014.

    [6] The publication can be found at https://www.ftc.gov/system/files/documents/plain-language/pdf0205-startwithsecurity.pdf.

    [7] See "Internet of Things Privacy & Security in a Connected World FTC Staff Report (January 2015)" at https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf.

    [8] See "Careful Connections: Building Security in the Internet of Things" at https://www.ftc.gov/system/files/documents/plain-language/pdf0199-carefulconnections-buildingsecurityinternetofthings.pdf

    [9] United States of America (on behalf of the FTC), v. Yelp Inc., No. 3:14-cv-04163 (N.D. CA.) (Stipulated Order For Permanent Injunction And Civil Penalty Judgment) (September 16, 2014); United States of America (on behalf of the FTC), v. TinyCo, Inc., No: 3:14-cv-04164 (N.D. CA.) (Stipulated Order For Permanent Injunction And Civil Penalty Judgment) (September 16, 2014).

    [10] FTC v. Amazon.com, Inc., No. 2:14-cv-01038 (W.D. Wash.) (Complaint For Permanent Injunction And Other Equitable Relief filed on July 10, 2014) (Order Adopting Stipulated Protective Order entered January 12, 2015).

    [11] In the Matter of Apple Inc., Docket No. C-4444, Decision and Order, March 25, 2014; In the Matter of

    Google Inc., Docket No. 122 3237, Proposed Agreement Containing Consent Order, September 4, 2014.

    [12] The FTC has brought approximately 180 cases involving telemarketing fraud against more than 1100 defendants during the past decade.

    [13] See Pass It On at http://www.consumer.ftc.gov/features/feature-0030-pass-it-on#identity-theft.

    [14] See http://www.consumer.ftc.gov/features/feature-0029-tax-identity-theft-awareness-week.

    [15] Federal Trade Commission v. AT&T Mobility, LLC, No. 1:14-cv-03227-HLM (N.D. Ga.) (Stipulated Order for Permanent Injunction and Monetary Judgment filed October 8, 2014); Federal Trade Commission v. T-Mobile USA, Inc., No. 2:14-cv-0097-JLR (W.D. Wa.) (Stipulated Order for Permanent Injunction and Monetary Judgment filed December 22, 2014)

    [16] FTC v. Cephalon, Inc., No. 2:08-CV-02141 (E.D. Pa.) (Stipulated Order for Permanent Injunction and Equitable Monetary Relief filed June 17, 2015).

    [17] FTC v. AbbVie, Inc., No. 2:14-cv-05151-RK (E.D. Pa.) (Complaint for Injunctive and Other Equitable Relief filed on September 8, 2014).

    [18] Saint Alphonsus Medical Center - Nampa, Inc., et al. v. St. Luke's Health System, Ltd., No. 1:12-CV-00560-BLW; FTC and State of Idaho v. St. Luke's Health System, Ltd. and Saltzer Medical Group, P.A., No. 1:13-CV-00116-BLW, aff'd. 778 F.3d 775 (9th Cir. 2015).

    [19] FTC v Sysco, USF Holding Corp., and US Foods, Inc., No. 1:15-cv-00256 (D.D.C.) (Memorandum Opinion of United States District Judge Amit P. Mehta Concluding That the Commission Is Likely To Prove That the Proposed Acquisition Violates Section 7 of the Clayton Act filed June 29, 2015).

    [20] See Self-Regulation in the Alcohol Industry (March 2014), available at http://www.ftc.gov/system/files/documents/reports/self-regulation-alcohol-industry-report-federal-trade-commission/140320alcoholreport.pdf.

    [21] More information can be found at http://www.dontserveteens.gov/.

    [22] Information regarding FTC oil and gas industry initiatives is available at https://www.ftc.gov/tips-advice/competition-guidance/industry-guidance/oil-and-gas.

    [23] Par Petroleum Corp., FTC File No. 1410171 (F.T.C. Mar. 18, 2015) (proposed consent order), available at https://www.ftc.gov/enforcement/cases-proceedings/141-0171/par-petroleum-mid-pac-petroleum.

    [24] For more information, see the Remedy Study weblink at https://www.ftc.gov/policy/studies/remedy-study.

    [25] See October 26, 2015 press release titled "FTC and Seven International Partners Launch New Initiative to Boost Cooperation in Protecting Consumer Privacy," at https://www.ftc.gov/news-events/press-releases/2015/10/ftc-seven-international-partners-launch-new-initiative-boost.

    [26] See press release "FTC Puts Conditions on Medtronic's Proposed Acquisition of Covidien" dated November 26, 2014, at https://www.ftc.gov/news-events/press-releases/2014/11/ftc-puts-conditions-medtronics-proposed-acquisition-covidien.

    [27] See Final Actions below for information about a separate completed rulemaking proceeding for the Energy Labeling Rule.

    [28] See Ongoing Rule and Guide Reviews for information about a separate ongoing rulemaking proceeding for the Energy Labeling Rule.

    [29] Section 3(f) of Executive Order 12866 defines a regulatory action to be "significant" if it is likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

    (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

    (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

    (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.