Order Text:
By the authority vested in me as President by the Constitution and the lawsof the United States of America, including section 721 of the DefenseProduction Act of 1950, as amended (50 U.S.C. App. 2170), and section 301of title 3, United States Code, it is hereby ordered as follows:
Section 1. Amendment to Executive Order 11858. Executive Order 11858 ofMay 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 lawsof the United States of America, including section 721 of the DefenseProduction Act of 1950, as amended (50 U.S.C. App. 2170), and section 301of title 3, United States Code, it is hereby ordered as follows:
Section 1. Policy. International investment in the United Statespromotes economic growth, productivity, competitiveness, and job creation. It is the policy of the United States to support unequivocally suchinvestment, consistent with the protection of the national security.
Sec. 2. Definitions. (a) The "Act" as used in this order means section721 of the Defense Production Act of 1950, as amended.
(b) Terms used in this order that are defined in subsection 721(a) of theAct shall have the same meaning in this order as they have in suchsubsection.
(c) "Risk mitigation measure" as used in this order means any provision ofa risk mitigation agreement or a condition to which section 7 of this orderrefers.
Sec. 3. Establishment. (a) There is hereby established the Committee onForeign Investment in the United States (the "Committee") as provided inthe Act.
(b) In addition to the members specified in the Act, the following headsof 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, asthe President or the Secretary of the Treasury determines appropriate, on acase-by-case basis.
(c) The following officials (or their designees) shall observe and, asappropriate, participate in and report to the President on the Committee'sactivities:
(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 andCounterterrorism.
Sec. 4. Duties of the Secretary of the Treasury.
(a) The functions of the President under subsections (b)(1)(A) (relatingto review and consideration after notification), (b)(1)(D) (relating tounilateral initiation of review and consideration), and (m)(3)(A) (relatingto inclusion in annual report and designation) of the Act are assigned tothe Secretary of the Treasury.
(b) The Secretary of the Treasury shall perform the function of issuanceof regulations under section 721(h) of the Act. The Secretary shallconsult the Committee with respect to such regulations prior to any noticeand comment and prior to their issuance.
(c) Except as otherwise provided in the Act or this order, the chairpersonshall have the authority, exclusive of the heads of departments oragencies, 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 thepublic.
(d) The chairperson shall coordinate the preparation of and transmit theannual report to the Congress provided for in the Act and may assign to anymember of the Committee, as the chairperson determines appropriate andconsistent with the Act, responsibility for conducting studies andproviding analyses necessary for the preparation of the report.
(e) After consultation with the Committee, the chairperson may requestthat the Director of National Intelligence begin preparing the analysisrequired by the Act at any time, including prior to acceptance of thenotice of a transaction, in accordance with otherwise applicable law. TheDirector of National Intelligence shall provide the Director's analysis assoon 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 thespecific activity for which the Secretary of the Treasury designates it alead agency.
(b) In acting on behalf of the Committee, the lead agency shall keep theCommittee fully informed of its activities. In addition, the lead agencyshall notify the chairperson of any material action that the lead agencyproposes to take on behalf of the Committee, sufficiently in advance toallow adequate time for the chairperson to consult the Committee andprovide the Committee's direction to the lead agency not to take, or toamend, such action.
Sec. 6. Reviews and Investigations.
(a) Any member of the Committee may conduct its own inquiry with respectto the potential national security risk posed by a transaction, butcommunication with the parties to a transaction shall occur through or inthe presence of the lead agency, or the chairperson if no lead agency hasbeen designated.
(b) The Committee shall undertake an investigation of a transaction in anycase, in addition to the circumstances described in the Act, in whichfollowing a review a memberof the Committee advises the chairperson that the member believes that thetransaction threatens to impair the national security of the United Statesand that the threat has not been mitigated.
(c) The Committee shall send a report to the President requesting thePresident's decision with respect to a review or investigation of atransaction in the following circumstances:
(i) the Committee recommends that the President suspend or prohibit thetransaction;
(ii) the Committee is unable to reach a decision on whether to recommendthat the President suspend or prohibit the transaction; or
(iii) the Committee requests that the President make a determination withregard to the transaction.
(d) Upon completion of a review or investigation of a transaction, thelead agency shall prepare for the approval of the chairperson theappropriate certified notice or report to the Congress called for under theAct. 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 onbehalf of the Committee, may seek to mitigate any national security riskposed by a transaction that is not adequately addressed by other provisionsof law by entering into a mitigation agreement with the parties to atransaction or by imposing conditions on such parties.
(b) Prior to the Committee or a department or agency proposing riskmitigation measures to the parties to a transaction, the department oragency seeking to propose any such measure shall prepare and provide to theCommittee a written statement that: (1) identifies the national securityrisk posed by the transaction based on factors including the threat (takinginto account the Director of National Intelligence's threat analysis),vulnerabilities, and potential consequences; and (2) sets forth the riskmitigation measures the department or agency believes are reasonablynecessary to address the risk. If the Committee agrees that mitigation isappropriate and approves the risk mitigation measures, the lead agencyshall seek to negotiate such measures with the parties to the transaction.
(c) A risk mitigation measure shall not, except in extraordinarycircumstances, require that a party to a transaction recognize, state itsintent to comply with, or consent to the exercise of any authorities underexisting provisions of law.
(d) The lead agency designated for the purpose of monitoring a riskmitigation measure shall seek to ensure that adequate resources areavailable for such monitoring. When designating a lead agency for thosepurposes, the Secretary of the Treasury shall consider the agency's viewson the adequacy of its resources for such purposes.
(e)(i) Nothing in this order shall be construed to limit the ability of adepartment or agency, in the exercise of authorities other than thoseprovided 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 withthe parties to a transaction.
(ii) A department or agency shall not condition actions or the exerciseof authorities to which paragraph (i) of this subsection refers upon theexercise, or forbearance in the exercise, of its authority under the Act orthis order, and no authority under the Act shall be available for theenforcement of such actions or authorities.
(f) The Committee may initiate a review of a transaction that haspreviously been reviewed by the Committee only in the extraordinarycircumstances provided in the Act.
Sec. 8. Additional Assignments to the Committee. In addition to thefunctions assigned to the Committee by the Act, the Committee shall reviewthe implementation of the Act and this order and report thereon from timeto time to the President, together with such recommendations for policy,administrative, or legislative proposals as the Committee determinesappropriate.
Sec. 9. Duties of the Secretary of Commerce. The Secretary of Commerceshall:
(a) obtain, consolidate, and analyze information on foreign investment inthe United States;
(b) monitor and, where necessary, improve procedures for the collectionand dissemination of information on foreign investment in the UnitedStates;
(c) prepare for the public, the President or heads of departments oragencies, as appropriate, reports, analyses of trends, and analyses ofsignificant developments in appropriate categories of foreign investment inthe United States; and
(d) compile and evaluate data on significant transactions involvingforeign investment in the United States.
Sec. 10. General Provisions. (a) The heads of departments and agenciesshall provide, as appropriate and to the extent permitted by law, suchinformation and assistance as the Committee may request to implement theAct and this order.
(b) Nothing in this order shall be construed to impair or otherwiseaffect:
(i) authority granted by law to a department or agency or the headthereof;
(ii) functions of the Director of the Office of Management and Budgetrelating to budget, administrative, or legislative proposals; or
(iii) existing mitigation agreements.
(c) This order shall be implemented consistent with applicable law andsubject to the availability of appropriations.
(d) Officers of the United States with authority or duties under the Actor this order shall ensure that, in carrying out the Act and this order,the actions of departments, agencies, and the Committee are consistent withthe President's constitutional authority to:
(i) conduct the foreign affairs of the United States;
(ii) withhold information the disclosure of which could impair the foreignrelations, the national security, the deliberative processes of theExecutive, or the performance of the Executive's constitutional duties;
(iii) recommend for congressional consideration such measures as thePresident may judge necessary and expedient; and (iv) supervise the unitaryexecutive 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 lawor in equity, by any party against the United States, its departments,agencies or entities, its officers, employees, or agents, or any otherperson.
GEORGE W. BUSH
