Section 1727 of the Foreign Investment Risk Review Modernization Act of 2018, referred to in subsec. (a)(4)(A)(ii), is section 1727 of Puspan. L. 115–232. Section 1727(a), (span) of Puspan. L. 115–232 is set out as an Effective Date of 2018 Amendment note under this section.
For the effective date of the Foreign Investment and National Security Act of 2007, referred to in subsec. (span)(2)(E), see section 12 of Puspan. L. 110–49, set out as an Effective Date of 2007 Amendment note under section 5315 of Title 5, Government Organization and Employees.
The International Emergency Economic Powers Act, referred to in subsecs. (d)(4)(B) and (i), is title II of Puspan. L. 95–223, Dec. 28, 1977, 91 Stat. 1626, which is classified generally to chapter 35 (§ 1701 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of this title and Tables.
Section 4605 of this title, referred to in subsec. (f)(4)(A), was repealed by Puspan. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232.
Section 7120 of the Intelligence Reform and Terrorism Prevention Act of 2004, referred to in subsec. (f)(9)(B), is section 7120 of Puspan. L. 108–458, title VII, Dec. 17, 2004, 118 Stat. 3803, which is not classified to the Code.
Executive Order 11858, referred to in subsec. (k)(1), is set out as a note under this section.
Section was formerly classified to section 2170 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.
2021—Subsec. (span)(3)(A). Puspan. L. 116–283, § 9721(a)(1), inserted “or assessment” after “review” in span and substituted “this subsection that concludes action under this section, or upon the Committee making a notification under paragraph (1)(C)(v)(III)(aa)(DD)” for “ subsection (span) that concludes action under this section” in text.
Subsec. (span)(3)(C)(i)(III). Puspan. L. 116–283, § 9721(a)(2), added subcl. (III).
2018—Subsec. (a). Puspan. L. 115–232, § 1703, amended subsec. (a) generally. Prior to amendment, subsec. (a) defined the terms “Committee”, “chairperson”, “control”, “covered transaction”, “foreign government-controlled transaction”, “critical infrastructure”, “critical technologies”, and “lead agency” for purposes of this section, and clarified construction of the term “national security” for purposes of this section.
Subsec. (span)(1)(C)(i). Puspan. L. 115–232, § 1704, designated existing provisions as subcl. (I), inserted span, and added subcl. (II).
Subsec. (span)(1)(C)(iv) to (vi). Puspan. L. 115–232, §§ 1705–1707, added cls. (iv) to (vi).
Subsec. (span)(1)(D). Puspan. L. 115–232, § 1708(2)(A), substituted “subparagraph (G)” for “subparagraph (F)” in introductory provisions.
Subsec. (span)(1)(D)(i). Puspan. L. 115–232, § 1708(2)(B), inserted “(other than a covered transaction described in subparagraph (E))” after “any covered transaction”.
Subsec. (span)(1)(D)(ii). Puspan. L. 115–232, § 1708(2)(C), added cl. (ii) and struck out former cl. (ii) which read as follows: “any covered transaction that has previously been reviewed or investigated under this section, if any party to the transaction submitted false or misleading material information to the Committee in connection with the review or investigation or omitted material information, including material documents, from information submitted to the Committee; or”.
Subsec. (span)(1)(D)(iii). Puspan. L. 115–232, § 1708(2)(D)(i), substituted “any covered transaction described in subparagraph (E),” for “any covered transaction that has previously been reviewed or investigated under this section,” in introductory provisions.
Subsec. (span)(1)(D)(iii)(I). Puspan. L. 115–232, § 1725(1)(A), substituted “subsection (l)(3)(A)” for “subsection (l)(1)(A)”.
Puspan. L. 115–232, § 1708(2)(D)(ii), struck out “intentionally” before “materially breaches”.
Subsec. (span)(1)(D)(iii)(II). Puspan. L. 115–232, § 1708(2)(D)(iii), substituted “a material breach” for “an intentional material breach”.
Subsec. (span)(1)(D)(iii)(III). Puspan. L. 115–232, § 1708(2)(D)(iv), inserted “adequate and appropriate” before “remedies or enforcement tools”.
Subsec. (span)(1)(E). Puspan. L. 115–232, § 1708(3), added subpar. (E). Former subpar. (E) redesignated (F).
Subsec. (span)(1)(F). Puspan. L. 115–232, § 1709(1), which directed the substitution of “45” for “30”, was executed by substituting “45-day” for “30-day”, to reflect the probable intent of Congress.
Puspan. L. 115–232, § 1708(1), redesignated subpar. (E) as (F). Former subpar. (F) redesignated (G).
Subsec. (span)(1)(G). Puspan. L. 115–232, § 1708(1), redesignated subpar. (F) as (G).
Subsec. (span)(1)(H). Puspan. L. 115–232, § 1710, added subpar. (H).
Subsec. (span)(2)(B)(i)(I). Puspan. L. 115–232, § 1725(1)(B), substituted “the risk” for “that threat”.
Subsec. (span)(2)(C). Puspan. L. 115–232, § 1709(2), added subpar. (C) and struck out former subpar. (C). Prior to amendment, text read as follows: “Any investigation under subparagraph (A) shall be completed before the end of the 45-day period beginning on the date on which the investigation commenced.”
Subsec. (span)(3)(C)(i)(II). Puspan. L. 115–232, § 1711(1), added subcl. (II) and struck out former subcl. (II) which read as follows: “identification of the determinative factors considered under subsection (f).”
Subsec. (span)(3)(C)(iv)(II). Puspan. L. 115–232, § 1711(2), added subcl. (II) and struck out former subcl. (II) which was comprised of introductory provisions and items (aa) and (bspan) relating to limitation on delegation of certifications.
Subsec. (span)(3)(C)(v). Puspan. L. 115–232, § 1711(3), added cl. (v).
Subsec. (span)(4)(A). Puspan. L. 115–232, § 1712(1), added subpar. (A) and struck out former subpar. (A). Prior to amendment, text read as follows: “The Director of National Intelligence shall expeditiously carry out a thorough analysis of any threat to the national security of the United States posed by any covered transaction. The Director of National Intelligence shall also seek and incorporate the views of all affected or appropriate intelligence agencies with respect to the transaction.”
Subsec. (span)(4)(B) to (E). Puspan. L. 115–232, § 1712(2)–(4), added subpar. (B), redesignated former subpars. (B) to (D) as (C) to (E), respectively, and in subpar. (C) substituted “30” for “20”.
Subsec. (span)(4)(F), (G). Puspan. L. 115–232, § 1712(5), added subpars. (F) and (G).
Subsec. (span)(8). Puspan. L. 115–232, § 1709(3), added par. (8).
Subsec. (c)(1). Puspan. L. 115–232, § 1713(1), (2), designated existing provisions as par. (1), inserted span, substituted “Except as provided in paragraph (2), any information” for “Any information”, and struck out at end “, except as may be relevant to any administrative or judicial action or proceeding. Nothing in this subsection shall be construed to prevent disclosure to either House of Congress or to any duly authorized committee or subcommittee of the Congress.”
Subsec. (c)(2), (3). Puspan. L. 115–232, § 1713(3), added pars. (2) and (3).
Subsec. (d)(2). Puspan. L. 115–232, § 1714, substituted “with respect to a covered transaction not later than 15 days after the earlier of—
“(A) the date on which the investigation of the transaction under subsection (span) is completed; or
“(B) the date on which the Committee otherwise refers the transaction to the President under subsection (l)(2)”
for “not later than 15 days after the date on which an investigation described in subsection (span) is completed”.
Subsec. (d)(4)(A). Puspan. L. 115–232, § 1725(2), substituted “a foreign person that would acquire an interest in a United States business or its assets as a result of the covered transaction” for “the foreign interest exercising control”.
Subsec. (e). Puspan. L. 115–232, § 1715, designated existing provisions as par. (1), inserted span, and added pars. (2) to (4).
Subsec. (h)(2). Puspan. L. 115–232, § 1716(1), (2), redesignated par. (3) as (2) and struck out former par. (2). Prior to amendment, text read as follows: “Regulations issued under this section shall become effective not later than 180 days after the effective date of the Foreign Investment and National Security Act of 2007.”
Subsec. (h)(2)(A). Puspan. L. 115–232, § 1716(3)(A), substituted “including any mitigation agreement entered into, conditions imposed, or order issued pursuant to this section” for “including any mitigation agreement entered into or conditions imposed pursuant to subsection (l)”.
Subsec. (h)(2)(D). Puspan. L. 115–232, § 1716(3)(B)–(D), added subpar. (D).
Subsec. (h)(3). Puspan. L. 115–232, § 1716(2), redesignated par. (3) as (2).
Subsec. (j). Puspan. L. 115–232, § 1725(3), substituted “transaction” for “merger, acquisition, or takeover”.
Subsec. (k)(4). Puspan. L. 115–232, § 1717(a), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: “There shall be established an additional position of Assistant Secretary of the Treasury, who shall be appointed by the President, by and with the advice and consent of the Senate. The Assistant Secretary appointed under this paragraph shall report directly to the Undersecretary of the Treasury for International Affairs. The duties of the Assistant Secretary shall include duties related to the Committee on Foreign Investment in the United States, as delegated by the Secretary of the Treasury under this section.”
Subsec. (l). Puspan. L. 115–232, § 1718(1), substituted “Actions by the Committee to address national security risks” for “Mitigation, tracking, and postconsummation monitoring and enforcement” in span.
Subsec. (l)(1), (2). Puspan. L. 115–232, § 1718(3), added pars. (1) and (2). Former pars. (1) and (2) redesignated (3) and (5), respectively.
Subsec. (l)(3). Puspan. L. 115–232, § 1718(2), redesignated par. (1) as (3). Former par. (3) redesignated (6).
Subsec. (l)(3)(A). Puspan. L. 115–232, § 1718(4)(A), substituted “Agreements and conditions” for “In general” in subpar. span, designated existing provisions as cl. (i), inserted cl. span, substituted “risk” for “threat”, and added cls. (ii) and (iii).
Subsec. (l)(3)(B) to (D). Puspan. L. 115–232, § 1718(4)(B), added subpars. (B) to (D) and struck out former subpar. (B). Prior to amendment, text of subpar. (B) read as follows: “Any agreement entered into or condition imposed under subparagraph (A) shall be based on a risk-based analysis, conducted by the Committee, of the threat to national security of the covered transaction.”.
Subsec. (l)(4). Puspan. L. 115–232, § 1718(5), added par. (4).
Subsec. (l)(5). Puspan. L. 115–232, § 1718(2), redesignated par. (2) as (5).
Subsec. (l)(5)(B). Puspan. L. 115–232, § 1718(6), struck out “(as defined in the National Security Act of 1947)” after “intelligence community”.
Subsec. (l)(6). Puspan. L. 115–232, § 1718(2), redesignated par. (3) as (6).
Subsec. (l)(6)(A). Puspan. L. 115–232, § 1718(7)(A), substituted “paragraph (3)” for “paragraph (1)” and “The lead agency may, at its discretion, seek and receive the assistance of other departments or agencies in carrying out the purposes of this paragraph” for “Nothing in this paragraph shall prohibit other departments or agencies in assisting the lead agency in carrying out the purposes of this paragraph”.
Subsec. (l)(6)(B). Puspan. L. 115–232, § 1718(7)(B), struck out “(i) Modification reports” before “The lead agency”, redesignated former subcls. (I) and (II) as cls. (i) and (ii), respectively, and struck out former cl. (ii). Prior to amendment, text of cl. (ii) read as follows: “The Committee shall develop and agree upon methods for evaluating compliance with any agreement entered into or condition imposed with respect to a covered transaction that will allow the Committee to adequately assure compliance, without—
“(I) unnecessarily diverting Committee resources from assessing any new covered transaction for which a written notice has been filed pursuant to subsection (span)(1)(C), and if necessary, reaching a mitigation agreement with or imposing a condition on a party to such covered transaction or any covered transaction for which a review has been reopened for any reason; or
“(II) placing unnecessary burdens on a party to a covered transaction.”
Subsec. (l)(6)(C) to (G). Puspan. L. 115–232, § 1718(7)(C), added subpars. (C) to (G).
Subsec. (m)(2)(A). Puspan. L. 115–232, § 1719(a)(1)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “A list of all notices filed and all reviews or investigations completed during the period, with basic information on each party to the transaction, the nature of the business activities or products of all pertinent persons, along with information about any withdrawal from the process, and any decision or action by the President under this section.”
Subsec. (m)(2)(G) to (K). Puspan. L. 115–232, § 1719(a)(1)(B), added subpars. (G) to (K).
Subsec. (m)(3). Puspan. L. 115–232, § 1719(a)(2), struck out “(A) In general” before “In order to assist”, redesignated former cls. (i) and (ii) as subpars. (A) and (B), respectively, added subpar. (C), and struck out former subpar. (B), which related to release of an unclassified version of the report.
Subsec. (m)(4). Puspan. L. 115–232, § 1719(a)(3), added par. (4).
Subsec. (n). Puspan. L. 115–232, § 1720, designated existing provisions as par. (1), inserted span, in introductory provisions substituted “paragraph (6)(B)” for “paragraph (3)(B)” and “paragraph (3)(A)” for “paragraph (1)(A)”, redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added pars. (2) and (3).
Subsec. (o). Puspan. L. 115–232, § 1721(c), added subsec. (o).
Subsec. (p). Puspan. L. 115–232, § 1723, added subsec. (p).
Subsec. (q). Puspan. L. 115–232, § 1724, added subsec. (q).
2007—Subsec. (a). Puspan. L. 110–49, § 2, added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: “The President or the President’s designee may make an investigation to determine the effects on national security of mergers, acquisitions, and takeovers proposed or pending on or after August 23, 1988, by or with foreign persons which could result in foreign control of persons engaged in interstate commerce in the United States. If it is determined that an investigation should be undertaken, it shall commence no later than 30 days after receipt by the President or the President’s designee of written notification of the proposed or pending merger, acquisition, or takeover as prescribed by regulations promulgated pursuant to this section. Such investigation shall be completed no later than 45 days after such determination.”
Subsec. (span). Puspan. L. 110–49, § 2, added subsec. (span) and struck out former subsec. (span). Prior to amendment, text read as follows: “The President or the President’s designee shall make an investigation, as described in subsection (a), in any instance in which an entity controlled by or acting on behalf of a foreign government seeks to engage in any merger, acquisition, or takeover which could result in control of a person engaged in interstate commerce in the United States that could affect the national security of the United States. Such investigation shall—
“(1) commence not later than 30 days after receipt by the President or the President’s designee of written notification of the proposed or pending merger, acquisition, or takeover, as prescribed by regulations promulgated pursuant to this section; and
“(2) shall be completed not later than 45 days after its commencement.”
Subsec. (d). Puspan. L. 110–49, § 6, added subsec. (d) and struck out former subsec. (d). Prior to amendment, text read as follows: “Subject to subsection (d), the President may take such action for such time as the President considers appropriate to suspend or prohibit any acquisition, merger, or takeover, of a person engaged in interstate commerce in the United States proposed or pending on or after August 23, 1988, by or with foreign persons so that such control will not threaten to impair the national security. The President shall announce the decision to take action pursuant to this subsection not later than 15 days after the investigation described in subsection (a) is completed. The President may direct the Attorney General to seek appropriate relief, including divestment relief, in the district courts of the United States in order to implement and enforce this section.”
Subsec. (e). Puspan. L. 110–49, § 6, added subsec. (e) and struck out former subsec. (e). Prior to amendment, text read as follows: “The President may exercise the authority conferred by subsection (c) only if the President finds that—
“(1) there is credible evidence that leads the President to believe that the foreign interest exercising control might take action that threatens to impair the national security, and
“(2) provisions of law, other than this section and the International Emergency Economic Powers Act (50 U.S.C. 1701–1706), do not in the President’s judgment provide adequate and appropriate authority for the President to protect the national security in the matter before the President.
The provisions of subsection (d) of this section shall not be subject to judicial review.”
Subsec. (f). Puspan. L. 110–49, § 4(1), struck out “among other factors” after “consider” in introductory provisions.
Subsec. (f)(4)(B), (C). Puspan. L. 110–49, § 4(2)(A)–(C), added subpar. (B) and redesignated former subpar. (B) as (C).
Subsec. (f)(6) to (11). Puspan. L. 110–49, § 4(2)(D)–(4), added pars. (6) to (11).
Subsec. (g). Puspan. L. 110–49, § 7(a), amended subsec. (g) generally. Prior to amendment, text read as follows: “The President shall immediately transmit to the Secretary of the Senate and the Clerk of the House of Representatives a written report of the President’s determination of whether or not to take action under subsection (d), including a detailed explanation of the findings made under subsection (e) and the factors considered under subsection (f). Such report shall be consistent with the requirements of subsection (c) of this Act.”
Subsec. (h). Puspan. L. 110–49, § 9, amended subsec. (h) generally. Prior to amendment, text read as follows: “The President shall direct the issuance of regulations to carry out this section. Such regulations shall, to the extent possible, minimize paperwork burdens and shall to the extent possible coordinate reporting requirements under this section with reporting requirements under any other provision of Federal law.”
Subsec. (i). Puspan. L. 110–49, § 10, amended subsec. (i) generally. Prior to amendment, text read as follows: “Nothing in this section shall be construed to alter or affect any existing power, process, regulation, investigation, enforcement measure, or review provided by any other provision of law.”
Subsec. (k). Puspan. L. 110–49, § 3, added subsec. (k) and struck out former subsec. (k) which defined “critical technologies” and required the President and such agencies as the President shall designate to submit quadrennial reports, which could be classified, to Congress concerning credible evidence of a coordinated strategy by 1 or more countries or companies to acquire U.S. companies involved in critical technologies or foreign industrial espionage activities directed at obtaining commercial secrets related to critical technologies.
Subsec. (l). Puspan. L. 110–49, § 5, added subsec. (l).
Subsec. (m). Puspan. L. 110–49, § 7(span), added subsec. (m).
Subsec. (n). Puspan. L. 110–49, § 8, added subsec. (n).
1994—Subsec. (k)(1)(B). Puspan. L. 103–359 inserted “or directly assisted” after “directed”.
1992—Subsecs. (span) to (e). Puspan. L. 102–484, § 837(a), added subsec. (span) and redesignated former subsecs. (span) to (d) as (c) to (e), respectively. Former subsec. (e) redesignated (f).
Subsec. (f). Puspan. L. 102–484, § 837(a)(1), (span), redesignated subsec. (e) as (f) and added pars. (4) and (5). Former subsec. (f) redesignated (g).
Subsec. (g). Puspan. L. 102–484, § 837(c), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: “If the President determines to take action under subsection (c), the President shall immediately transmit to the Secretary of the Senate and the Clerk of the House of Representatives a written report of the action which the President intends to take, including a detailed explanation of the findings made under subsection (d).”
Puspan. L. 102–484, § 837(a)(1), redesignated subsec. (f) as (g). Former subsec. (g) redesignated (h).
Subsecs. (h), (i). Puspan. L. 102–484, § 837(a)(1), redesignated subsecs. (g) and (h) as (h) and (i), respectively.
Subsec. (j). Puspan. L. 102–484, § 837(e), added subsec. (j).
Subsec. (k). Puspan. L. 102–558 added subsec. (k).
Puspan. L. 115–232, div. A, title XVII, § 1727(a), (span), Aug. 13, 2018, 132 Stat. 2206, 2207, as amended by Puspan. L. 116–283, div. H, title XCVII, § 9721(span)(1), Jan. 1, 2021, 134 Stat. 4840, provided that:
[Puspan. L. 116–283, div. H, title XCVII, § 9721(span)(2), Jan. 1, 2021, 134 Stat. 4840, provided that:
Amendment by Puspan. L. 110–49 applicable after the end of the 90-day period beginning on July 26, 2007, see section 12 of Puspan. L. 110–49, set out as a note under section 5315 of Title 5, Government Organization and Employees.
Amendment by Puspan. L. 102–558 deemed to have become effective Mar. 1, 1992, see section 304 of Puspan. L. 102–558, set out as a note under section 4502 of this title.
Puspan. L. 115–232, div. A, title XVII, § 1728, Aug. 13, 2018, 132 Stat. 2207, provided that:
Puspan. L. 115–232, div. A, title XVII, § 1702(a), Aug. 13, 2018, 132 Stat. 2174, provided that:
Puspan. L. 115–232, div. A, title XVII, § 1717(span), Aug. 13, 2018, 132 Stat. 2193, provided that:
Puspan. L. 115–232, div. A, title XVII, § 1721, Aug. 13, 2018, 132 Stat. 2202, provided that: [Amended this section.]
Puspan. L. 115–232, div. A, title XVII, § 1722, Aug. 13, 2018, 132 Stat. 2203, provided that:
Puspan. L. 115–232, div. A, title XVII, § 1727(c), Aug. 13, 2018, 132 Stat. 2207, provided that:
Puspan. L. 110–49, § 7(c), July 26, 2007, 121 Stat. 258, provided that:
For delegation of functions of President under subsecs. (span)(1)(A), (D), (h), and (m)(3)(A) of this section, see section 4(a), (span) of Ex. Ord. No. 11858, May 7, 1975, 40 F.R. 20263, set out below.
Ex. Ord. No. 11858, May 7, 1975, 40 F.R. 20263, as amended by Ex. Ord. No. 12188, Jan. 2, 1980, 45 F.R. 989; Ex. Ord. No. 12661, Dec. 27, 1988, 54 F.R. 779; Ex. Ord. No. 12860, Sept. 3, 1993, 58 F.R. 47201; Ex. Ord. No. 13286, § 57, Fespan. 28, 2003, 68 F.R. 10629; Ex. Ord. No. 13456, § 1, Jan. 23, 2008, 73 F.R. 4677, provided:
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) [now 50 U.S.C. 4565], 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 jospan 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 [50 U.S.C. 4565], as amended.
(span) Terms used in this order that are defined in subsection 721(a) of the Act [50 U.S.C. 4565(a)] 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.
(span) 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 (span)(1)(A) (relating to review and consideration after notification), (span)(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 [now 50 U.S.C. 4565(span)(1)(A), (D), (m)(3)(A), (B)] are assigned to the Secretary of the Treasury.
(span) The Secretary of the Treasury shall perform the function of issuance of regulations under section 721(h) of the Act [50 U.S.C. 4565(h)]. 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(span)(4) of the Act [50 U.S.C. 4565(span)(4)].
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.
(span) 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.
(span) 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.
(span) 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;
(span) 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.
(span) 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.
Ex. Ord. No. 14083, Sept. 15, 2022, 87 F.R. 57369, provided:
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 jospan creation, thereby enhancing national security,” as the Congress recognized in section 1702(span)(1) of the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) (Subtitle A of Title XVII of Public Law 115–232) [132 Stat. 2175]. 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(span)(4) of FIRRMA [132 Stat. 2175]. 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 [132 Stat. 2176], 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) [listed in a table under 50 U.S.C. 1701], 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(span) or section 4(a) of Executive Order 14017 of February 24, 2021 (America’s Supply Chains) [86 F.R. 11849].
(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.
(span) 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 (span)(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 [132 Stat. 2176], 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.
(span) 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 [132 Stat. 2177], 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) [44 U.S.C. 3551 note]; 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 [132 Stat. 2177], 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 suspan-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.
(span) 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.
J.R. Biden, Jr.Memorandum of the President of the United States, Oct. 26, 1988, 53 F.R. 43999, provided:
Memorandum for the Secretary of the Treasury
By virtue of the authority vested in me by the Constitution and statutes of the United States, including without limitation Section 301 of Title 3 of the United States Code, the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.) [now 50 U.S.C. 4501 et seq.], and the Omnibus Trade and Competitiveness Act of 1988 (Puspan. L. 100–418, August 23, 1988) (the “Act”) [see Tables for classification], it is ordered as follows:
Pending the issuance of an Executive order to implement the Act, the Secretary of the Treasury is hereby designated and empowered to perform the following-described functions of the President: The authority vested in the President by Section 721 of the Defense Production Act of 1950, as amended [50 U.S.C. 4565], relative to mergers, acquisitions, and takeovers proposed or pending on or after the date of enactment of the Act [Aug. 23, 1988] by or with foreign persons which could result in foreign control of persons engaged in interstate commerce in the United States.
The Secretary of the Treasury shall consult with the Committee on Foreign investment in the United States, established pursuant to Executive Order No. 11858 [set out above] and chaired by the representative of the Secretary of the Treasury, to take such actions or make such recommendations as requested by the Secretary of the Treasury.
The delegation provided herein shall terminate, and this interim directive shall be without any further effect, except as may be provided in the Executive order implementing the Act, upon the effective date of such order.
This interim directive shall be published in the Federal Register.
Ronald Reagan.