Ensuring Robust Consideration of Evolving National Security Risks by the Committee on Foreign Investment in the United States

Executive Order 14083 of September 15, 2022

Ensuring Robust Consideration of Evolving
                National Security Risks by the Committee on 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. 4565)
                (section 721), and section 301 of title 3, United
                States Code, it is hereby ordered as follows:

                Section 1. Policy. The United States welcomes and
                supports foreign investment, consistent with the
                protection of national security. The United States
                commitment to open investment is a cornerstone of our
                economic policy and provides the United States with
                substantial economic benefits, including “the
                promotion of economic growth, productivity,
                competitiveness, and job creation, thereby enhancing
                national security,” as the Congress recognized in
                section 1702(b)(1) of the Foreign Investment Risk
                Review Modernization Act of 2018 (FIRRMA) (Subtitle A
                of Title XVII of Public Law 115-232). Some investments
                in the United States by foreign persons, however,
                present risks to the national security of the United
                States, and it is for this reason that the United
                States maintains a robust foreign investment review
                process focused on identifying and addressing such
                risks.

                It is important to ensure that the foreign investment
                review process remains responsive to an evolving
                national security landscape and the nature of the
                investments that pose related risks to national
                security, as the Congress recognized in section
                1702(b)(4) of FIRRMA. One factor for the Committee on
                Foreign Investment in the United States (Committee) to
                consider, as the Congress highlighted in section
                1702(c)(1) of FIRRMA, is that national security risks
                may arise from foreign investments involving “a
                country of special concern that has a demonstrated or
                declared strategic goal of acquiring a type of critical
                technology or critical infrastructure that would affect
                United States leadership in areas related to national
                security.” Along these lines, I previously underscored
                in Executive Order 14034 of June 9, 2021 (Protecting
                Americans' Sensitive Data From Foreign Adversaries),
                and emphasize in this order the risks presented by
                foreign adversaries' access to data of United States
                persons. With respect to investments directly or
                indirectly involving foreign adversaries or other
                countries of special concern, what may otherwise appear
                to be an economic transaction undertaken for commercial
                purposes may actually present an unacceptable risk to
                United States national security due to the legal
                environment, intentions, or capabilities of the foreign
                person, including foreign governments, involved in the
                transaction. It is the policy of the United States
                Government to continue to respond to these risks as
                they evolve, including through a robust review of
                foreign investments in United States businesses.

                In light of these risks, this order provides direction
                to the Committee to ensure that, in reviewing
                transactions within its jurisdiction (covered
                transactions), the Committee's review remains
                responsive to evolving national security risks,
                including by elaborating and expanding on the factors
                identified in subsections (f)(1)-(10) of section 721.
                This order shall be implemented consistent with the
                Committee's statutory mandate to determine the effects
                of each covered transaction reviewed by the Committee
                on the national security of the United States.

                Sec. 2. Elaboration on Existing Statutory Factors. (a)
                In considering the factors described in subsection
                (f)(3) of section 721, the Committee shall, taking into
                account the requirements of national security, consider
                the following, as appropriate:

(i) It is important to national security that the Committee continues to
assess the effect of foreign investment on domestic capacity to meet
national security requirements, including those requirements that fall
outside of the defense industrial base. In particular, the resilience of
certain critical United States supply chains may have national security
implications. The United States recognizes the importance of cooperating
with its allies and partners to secure supply chains; however, certain
foreign investment may undermine supply chain resilience efforts and
therefore national security by making the United States vulnerable to
future supply disruptions. These vulnerabilities may occur if an investment
shifts ownership, rights, or control with respect to certain manufacturing
capabilities, services, critical mineral resources, or technologies that
are fundamental to national security--including because they are critical
to United States supply chain resilience--to a foreign person who might
take actions that threaten to impair the national security of the United
States as a result of the transaction, or to other foreign persons,
including foreign governments, to whom the foreign person has commercial,
investment, non-economic, or other ties (relevant third-party ties) that
might cause the transaction to pose a threat to national security.

(ii) The Committee shall consider, as appropriate, the covered
transaction's effect on supply chain resilience and security, both within
and outside of the defense industrial base, in manufacturing capabilities,
services, critical mineral resources, or technologies that are fundamental
to national security, including: microelectronics, artificial intelligence,
biotechnology and biomanufacturing, quantum computing, advanced clean
energy (such as battery storage and hydrogen), climate adaptation
technologies, critical materials (such as lithium and rare earth elements),
elements of the agriculture industrial base that have implications for food
security, and any other sectors identified in section 3(b) or section 4(a)
of Executive Order 14017 of February 24, 2021 (America's Supply Chains).

  (A) The Committee shall consider, as appropriate, the degree of
involvement in the United States supply chain by a foreign person who is a
party to the covered transaction and who might take actions that threaten
to impair the national security of the United States as a result of the
transaction, or who might have relevant third-party ties that might cause
the transaction to pose such a threat.

  (B) The Committee shall consider, as appropriate, the United States
capability with respect to manufacturing capabilities, services, critical
mineral resources, or technologies, including those described in subsection
(a)(ii) of this section; the degree of diversification through alternative
suppliers across the supply chain, including suppliers located in allied or
partner economies; whether the United States business that is party to the
covered transaction supplies, directly or indirectly, the United States
Government, the energy sector industrial base, or the defense industrial
base; and the concentration of ownership or control by the foreign person
in a given supply chain, among other factors that the Committee determines
to be appropriate in considering whether the covered transaction may
undermine the resilience and security of supply chains critical to national
security.

                    (b) In considering the factors described in
                subsection (f)(5) of section 721, the Committee shall,
                taking into account the requirements of national
                security, consider the following, as appropriate:

(i) Although foreign investments can in many circumstances help to foster
domestic innovation, it is important to protect United States technological
leadership by addressing the risks posed by investments by foreign persons
who might take actions that threaten to impair the national security of the
United States as a result of the transaction, and by addressing whether

such persons have relevant third-party ties that might cause the
transaction to pose such a threat.

(ii) The Committee shall consider, as appropriate, whether a covered
transaction involves manufacturing capabilities, services, critical mineral
resources, or technologies that are fundamental to United States
technological leadership and therefore national security, such as
microelectronics, artificial intelligence, biotechnology and
biomanufacturing, quantum computing, advanced clean energy, and climate
adaptation technologies. The Committee shall also consider, as appropriate,
relevant third-party ties that might cause the transaction to threaten to
impair the national security of the United States.

(iii) The Committee shall consider, as appropriate, whether a covered
transaction could reasonably result in future advancements and applications
in technology that could undermine national security.

(iv) The Office of Science and Technology Policy (OSTP), in consultation
with other members of the Committee, shall periodically publish a list of
technology sectors, including those technologies listed in subsection
(b)(ii) of this section, that it assesses are fundamental to United States
technological leadership in areas relevant to national security. OSTP
shall, as appropriate, draw on the findings of other United States
Government efforts to identify technology sectors that are fundamental to
United States technological leadership. The Committee shall consider the
list described in this subsection, as appropriate.

                Sec. 3. Additional Factors to be Considered. (a) In
                addition to the factors identified in subsections
                (f)(1)-(10) of section 721, the Committee shall
                consider, in reviewing the effects of a covered
                transaction on the national security of the United
                States, the following factors relating to aggregate
                industry investment trends that may have consequences
                for an individual covered transaction's impact on
                national security:

(i) Incremental investments over time in a sector or technology may cede,
part-by-part, domestic development or control in that sector or technology
and may give a foreign person who might take actions that threaten to
impair the national security of the United States as a result of the
transaction, or their relevant third-party ties that might cause the
transaction to pose such a threat, control of or rights in United States
businesses in a manner that may result in national security risk. A series
of acquisitions in the same, similar, or related United States businesses
involved in activities that are fundamental to national security or on
terms that implicate national security may result in a particular covered
transaction giving rise to a national security risk when considered in the
context of transactions that preceded it. In aggregate, these transactions
may facilitate harmful technology transfer in key industries or otherwise
harm national security through the cumulative effect of these investments.
As the Congress identified in section 1702(c)(2) of FIRRMA, the Committee
may consider “the cumulative control of, or pattern of recent transactions
involving, any one type of critical infrastructure, energy asset, critical
material, or critical technology by a foreign government or foreign
person” in considering national security risks. Contextualizing the
Committee's review of an individual transaction in light of the aggregate
or series of related transactions could reveal national security risks
arising from the covered transaction that were not otherwise apparent.

(ii) The Committee shall consider, as appropriate, as part of the
Committee's review of a covered transaction, the risks arising from the
covered transaction in the context of multiple acquisitions or investments
in a single sector or in related manufacturing capabilities, services,
critical mineral resources, or technologies, by any foreign person who
might take actions that threaten to impair the national security of the
United States as a result of the transaction, or involving relevant third-
party ties that might cause the transaction to pose such a threat.

(iii) The Committee may request, as part of the Committee's review of a
covered transaction, that the Department of Commerce's International Trade
Administration provide the Committee an analysis of the industry or
industries in which the United States business operates, and the cumulative
control of, or pattern of recent transactions by, a foreign person,
including, directly or indirectly, a foreign government, in that sector or
industry.

                    (b) In addition to the factors identified in
                subsections (f)(1)-(10) of section 721, the Committee
                shall consider, in reviewing the effects of a covered
                transaction on the national security of the United
                States, the following factors relating to cybersecurity
                risks resulting from a covered transaction that
                threaten to impair national security:

(i) It is important for the United States to ensure that foreign investment
in United States businesses does not erode United States cybersecurity.
Investments by foreign persons with the capability and intent to conduct
cyber intrusions or other malicious cyber-enabled activity--such as
activity designed to affect the outcome of any election for Federal, State,
Tribal, local, or territorial office; the operation of United States
critical infrastructure; or the confidentiality, integrity, or availability
of United States communications--may pose a risk to national security. The
Congress, in section 1702(c)(6) of FIRRMA, identified “exacerbating or
creating new cybersecurity vulnerabilities” as a relevant consideration
for the Committee when considering national security risks arising from a
covered transaction. Review of foreign investment is an important tool as
part of broader United States efforts to ensure the cybersecurity of the
United States.

(ii) The Committee shall consider, as appropriate, whether a covered
transaction may provide a foreign person who might take actions that
threaten to impair the national security of the United States as a result
of the transaction, or their relevant third-party ties that might cause the
transaction to pose such a threat, with direct or indirect access to
capabilities or information databases and systems on which threat actors
could engage in malicious cyber-enabled activities affecting the interests
of the United States or United States persons, including:

  (A) activity designed to undermine the protection or integrity of data in
storage or databases or systems housing sensitive data;

  (B) activity designed to interfere with United States elections, United
States critical infrastructure, the defense industrial base, or other
cybersecurity national security priorities set forth in Executive Order
14028 of May 12, 2021 (Improving the Nation's Cybersecurity); and

  (C) the sabotage of critical energy infrastructure, including smart
grids.

(iii) The Committee shall also consider, as appropriate, the cybersecurity
posture, practices, capabilities, and access of both the foreign person and
the United States business that could allow a foreign person who might take
actions that threaten to impair the national security of the United States
as a result of the transaction, or their relevant third-party ties that
might cause the transaction to pose such a threat, to manifest cyber
intrusion and other malicious cyber-enabled activity within the United
States.

                    (c) In addition to the factors identified in
                subsections (f)(1)-(10) of section 721, the Committee
                shall consider, in reviewing the effects of a covered
                transaction on the national security of the United
                States, the following factors relating to national
                security concerns surrounding sensitive data:

(i) Data is an increasingly powerful tool for the surveillance, tracing,
tracking, and targeting of individuals or groups of individuals, with
potential adverse impacts on national security. In section 1702(c)(5) of
FIRRMA, the Congress recognized that the Committee may consider whether a
covered transaction may “expose, either directly or indirectly, personally
identifiable information, genetic information, or other sensitive data of
United States citizens to access by a foreign government or foreign person

that may exploit that information in a manner that threatens national
security.” Moreover, advances in technology, combined with access to large
data sets, increasingly enable the re-identification or de-anonymization of
what once was unidentifiable data. Therefore, it is important for the
United States Government to stay current with threats posed by advances in
such technology, including by considering potential risks posed by foreign
persons who might exploit access to certain data on United States persons
to target individuals or groups within the United States to the detriment
of national security. Accordingly, the Committee shall consider whether
foreign investments in United States businesses that have access to or that
store United States persons' sensitive data, including health and
biological data, involve a foreign person who might take actions that
threaten to impair the national security of the United States as a result
of the transaction, including whether the foreign person might have
relevant third-party ties that might cause the transaction to pose such a
threat.

(ii) The Committee shall consider, as appropriate, whether a covered
transaction involves a United States business that:

  (A) has access to United States persons' sensitive data, including United
States persons' health, digital identity, or other biological data and any
data that could be identifiable or de-anonymized, that could be exploited
to distinguish or trace an individual's identity in a manner that threatens
national security; or

  (B) has access to data on sub-populations in the United States that could
be used by a foreign person to target individuals or groups of individuals
in the United States in a manner that threatens national security.

(iii) The Committee shall also consider, as appropriate, whether a covered
transaction involves the transfer of United States persons' sensitive data
to a foreign person who might take actions that threaten to impair the
national security of the United States as a result of the transaction, and
whether the foreign person has relevant third-party ties that have sought
to exploit such information or have the ability to exploit such information
to the detriment of national security, including through the use of
commercial or other means.

                Sec. 4. Periodic Review. Consistent with the policy
                described in section 1 of this order, it is important
                for the Committee, on an ongoing basis, to continue to
                review its processes, practices, and regulations, and
                to continue to make any updates as needed and
                appropriate to ensure that the Committee's
                consideration of national security risks remains robust
                alongside changes to the national security landscape.
                Accordingly, the Committee shall regularly review its
                processes, practices, and regulations, and shall
                periodically provide to the Assistant to the President
                for National Security Affairs a report documenting the
                results of its review. The report shall also include
                any resulting policy recommendations that the Committee
                considers necessary to meet the evolving set of
                national security risks.

                Sec. 5. Definitions. For purposes of this order, terms
                shall have the same meanings ascribed to them in
                section 721 and regulations promulgated by the
                Committee under section 721.

                Sec. 6. General Provisions. (a) Nothing in this order
                shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or
the head thereof; or

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

                    (b) This order shall be implemented consistent with
                applicable law and subject to the availability of
                appropriations.
                    (c) This order is not intended to, and does not,
                affect the requirements in section 721 relating to the
                scope of the Committee's jurisdiction.

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

                    (Presidential Sig.)

                THE WHITE HOUSE,

                    September 15, 2022.