Presidential Documents

4677 

Federal Register 

Vol. 73, No. 17 

Friday, January 25, 2008 

Title 3— 

The President 

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. 


pwalker on PROD1PC69 with NOTICES4
4678 Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Presidential Documents 

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; 


pwalker on PROD1PC69 with NOTICES4
Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Presidential Documents 4679 

(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: 


pwalker on PROD1PC69 with NOTICES4
4680 Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Presidential Documents 

(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.’’


pwalker on PROD1PC69 with NOTICES4
Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Presidential Documents 4681 

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. 

THE WHITE HOUSE, 

January 23, 2008. 

[FR Doc. 08–360 

Filed 1–24–08; 10:38 am] 

Billing code 3195–01–P 


pwalker on PROD1PC69 with NOTICES4GWBOLD.EPS</GPH>