Further Amendment of Executive Order 11858 Concerning Foreign Investment in the United States

Executive Order 13456 of January 23, 2008

Further Amendment of Executive Order 11858
                Concerning Foreign Investment in the United States

                By the authority vested in me as President by the
                Constitution and the laws of the United States of
                America, including section 721 of the Defense
                Production Act of 1950, as amended (50 U.S.C. App.
                2170), and section 301 of title 3, United States Code,
                it is hereby ordered as follows:

                Section 1. Amendment to Executive Order 11858.
                Executive Order 11858 of May 7, 1975, as amended, is
                further amended to read as follows:

“FOREIGN INVESTMENT IN THE UNITED STATES

By the authority vested in me as President by the Constitution and the laws
of the United States of America, including section 721 of the Defense
Production Act of 1950, as amended (50 U.S.C. App. 2170), and section 301
of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. International investment in the United States promotes
economic growth, productivity, competitiveness, and job creation. It is the
policy of the United States to support unequivocally such investment,
consistent with the protection of the national security.

Sec. 2. Definitions. (a) The “Act” as used in this order means section
721 of the Defense Production Act of 1950, as amended.

(b) Terms used in this order that are defined in subsection 721(a) of the
Act shall have the same meaning in this order as they have in such
subsection.

(c) “Risk mitigation measure” as used in this order means any provision
of a risk mitigation agreement or a condition to which section 7 of this
order refers.

Sec. 3. Establishment. (a) There is hereby established the Committee on
Foreign Investment in the United States (the “Committee”) as provided in
the Act.

(b) In addition to the members specified in the Act, the following heads of
departments, agencies, or offices shall be members of the Committee:

(i) The United States Trade Representative;

(ii) The Director of the Office of Science and Technology Policy; and

(iii) The heads of any other executive department, agency, or office, as
the President or the Secretary of the Treasury determines appropriate, on a
case-by-case basis.

(c) The following officials (or their designees) shall observe and, as
appropriate, participate in and report to the President on the Committee's
activities:

(i) The Director of the Office of Management and Budget;

(ii) The Chairman of the Council of Economic Advisers;

(iii) The Assistant to the President for National Security Affairs;

(iv) The Assistant to the President for Economic Policy; and

(v) The Assistant to the President for Homeland Security and
Counterterrorism.

Sec. 4. Duties of the Secretary of the Treasury.

(a) The functions of the President under subsections (b)(1)(A) (relating to
review and consideration after notification), (b)(1)(D) (relating to
unilateral initiation of review and consideration), and (m)(3)(A) (relating
to inclusion in annual report and designation) of the Act are assigned to
the Secretary of the Treasury.

(b) The Secretary of the Treasury shall perform the function of issuance of
regulations under section 721(h) of the Act. The Secretary shall consult
the Committee with respect to such regulations prior to any notice and
comment and prior to their issuance.

(c) Except as otherwise provided in the Act or this order, the chairperson
shall have the authority, exclusive of the heads of departments or
agencies, after consultation with the Committee:

(i) to act, or authorize others to act, on behalf of the Committee; and

(ii) to communicate on behalf of the Committee with the Congress and the
public.

(d) The chairperson shall coordinate the preparation of and transmit the
annual report to the Congress provided for in the Act and may assign to any
member of the Committee, as the chairperson determines appropriate and
consistent with the Act, responsibility for conducting studies and
providing analyses necessary for the preparation of the report.

(e) After consultation with the Committee, the chairperson may request that
the Director of National Intelligence begin preparing the analysis required
by the Act at any time, including prior to acceptance of the notice of a
transaction, in accordance with otherwise applicable law. The Director of
National Intelligence shall provide the Director's analysis as soon as
possible and consistent with section 721(b)(4) of the Act.

Sec. 5. Lead Agency. (a) The lead agency or agencies (“lead agency”)
shall have primary responsibility, on behalf of the Committee, for the
specific activity for which the Secretary of the Treasury designates it a
lead agency.

(b) In acting on behalf of the Committee, the lead agency shall keep the
Committee fully informed of its activities. In addition, the lead agency
shall notify the chairperson of any material action that the lead agency
proposes to take on behalf of the Committee, sufficiently in advance to
allow adequate time for the chairperson to consult the Committee and
provide the Committee's direction to the lead agency not to take, or to
amend, such action.

Sec. 6. Reviews and Investigations.

(a) Any member of the Committee may conduct its own inquiry with respect to
the potential national security risk posed by a transaction, but
communication with the parties to a transaction shall occur through or in
the presence of the lead agency, or the chairperson if no lead agency has
been designated.

(b) The Committee shall undertake an investigation of a transaction in any
case, in addition to the circumstances described in the Act, in which
following a review a member of the Committee advises the chairperson that
the member believes that the transaction threatens to impair the national
security of the United States and that the threat has not been mitigated.

(c) The Committee shall send a report to the President requesting the
President's decision with respect to a review or investigation of a
transaction in the following circumstances:

(i) the Committee recommends that the President suspend or prohibit the
transaction;

(ii) the Committee is unable to reach a decision on whether to recommend
that the President suspend or prohibit the transaction; or

(iii) the Committee requests that the President make a determination with
regard to the transaction.

(d) Upon completion of a review or investigation of a transaction, the lead
agency shall prepare for the approval of the chairperson the appropriate
certified notice or report to the Congress called for under the Act. The
chairperson shall transmit such notice or report to the Congress, as
appropriate.

Sec. 7. Risk Mitigation. (a) The Committee, or any lead agency acting on
behalf of the Committee, may seek to mitigate any national security risk
posed by a transaction that is not adequately addressed by other provisions
of law by entering into a mitigation agreement with the parties to a
transaction or by imposing conditions on such parties.

(b) Prior to the Committee or a department or agency proposing risk
mitigation measures to the parties to a transaction, the department or
agency seeking to propose any such measure shall prepare and provide to the
Committee a written statement that: (1) identifies the national security
risk posed by the transaction based on factors including the threat (taking
into account the Director of National Intelligence's threat analysis),
vulnerabilities, and potential consequences; and (2) sets forth the risk
mitigation measures the department or agency believes are reasonably
necessary to address the risk. If the Committee agrees that mitigation is
appropriate and approves the risk mitigation measures, the lead agency
shall seek to negotiate such measures with the parties to the transaction.

(c) A risk mitigation measure shall not, except in extraordinary
circumstances, require that a party to a transaction recognize, state its
intent to comply with, or consent to the exercise of any authorities under
existing provisions of law.

(d) The lead agency designated for the purpose of monitoring a risk
mitigation measure shall seek to ensure that adequate resources are
available for such monitoring. When designating a lead agency for those
purposes, the Secretary of the Treasury shall consider the agency's views
on the adequacy of its resources for such purposes.

(e)(i) Nothing in this order shall be construed to limit the ability of a
department or agency, in the exercise of authorities other than those
provided under the Act, to:

(A) conduct inquiries with respect to a transaction;

(B) communicate with the parties to a transaction; or

(C) negotiate, enter into, impose, or enforce contractual provisions with
the parties to a transaction.

(ii) A department or agency shall not condition actions or the exercise of
authorities to which paragraph (i) of this subsection refers upon the
exercise, or forbearance in the exercise, of its authority under the Act or
this order, and no authority under the Act shall be available for the
enforcement of such actions or authorities.

(f) The Committee may initiate a review of a transaction that has
previously been reviewed by the Committee only in the extraordinary
circumstances provided in the Act.

Sec. 8. Additional Assignments to the Committee. In addition to the
functions assigned to the Committee by the Act, the Committee shall review
the implementation of the Act and this order and report thereon from time
to time to the President, together with such recommendations for policy,
administrative, or legislative proposals as the Committee determines
appropriate.

Sec. 9. Duties of the Secretary of Commerce. The Secretary of Commerce
shall:

(a) obtain, consolidate, and analyze information on foreign investment in
the United States;

(b) monitor and, where necessary, improve procedures for the collection and
dissemination of information on foreign investment in the United States;

(c) prepare for the public, the President or heads of departments or
agencies, as appropriate, reports, analyses of trends, and analyses of
significant developments in appropriate categories of foreign investment in
the United States; and

(d) compile and evaluate data on significant transactions involving foreign
investment in the United States.

Sec. 10. General Provisions. (a) The heads of departments and agencies
shall provide, as appropriate and to the extent permitted by law, such
information and assistance as the Committee may request to implement the
Act and this order.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof;

(ii) functions of the Director of the Office of Management and Budget
relating to budget, administrative, or legislative proposals; or

(iii) existing mitigation agreements.

(c) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.

(d) Officers of the United States with authority or duties under the Act or
this order shall ensure that, in carrying out the Act and this order, the
actions of departments, agencies, and the Committee are consistent with the
President's constitutional authority to: (i) conduct the foreign affairs of
the United States; (ii) withhold information the disclosure of which could
impair the foreign relations, the national security, the deliberative
processes of the Executive, or the performance of the Executive's
constitutional duties; (iii) recommend for congressional consideration such
measures as the President may judge necessary and expedient; and (iv)
supervise the unitary executive branch.

Sec. 11. Revocation. Section 801 of Executive Order 12919 of June 3, 1994,
is revoked.”

                Sec. 2. General Provision. This order is not intended
                to, and does not, create any right or benefit,
                substantive or procedural, enforceable at law or in
                equity, by any party against the United States, its
                departments, agencies or entities, its officers,
                employees, or agents, or any other person.

                    (Presidential Sig.)

                THE WHITE HOUSE,

                    January 23, 2008.