[Weekly Compilation of Presidential Documents Volume 44, Number 3 (Monday, January 28, 2008)]
[Pages 101-104]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13456--Further Amendment of Executive Order 11858 
Concerning Foreign Investment in the United States

January 23, 2008

    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.

[[Page 102]]

    (b) Terms used in this order that are defined in subsection 721(a) 
of the Act shall have the same meaning in this order as they have in 
such subsection.
    (c) ``Risk mitigation measure'' as used in this order means any 
provision of a risk mitigation agreement or a condition to which section 
7 of this order refers.
    Sec. 3. Establishment. (a) There is hereby established the Committee 
on Foreign Investment in the United States (the ``Committee'') as 
provided in the Act.
    (b) In addition to the members specified in the Act, the following 
heads of departments, agencies, or offices shall be members of the 
Committee:
    (i) The United States Trade Representative;
    (ii) The Director of the Office of Science and Technology Policy; 
and
    (iii) The heads of any other executive department, agency, or 
office, as the President or the Secretary of the Treasury determines 
appropriate, on a case-by-case basis.
    (c) The following officials (or their designees) shall observe and, 
as appropriate, participate in and report to the President on the 
Committee's activities:
    (i) The Director of the Office of Management and Budget;
    (ii) The Chairman of the Council of Economic Advisers;
    (iii) The Assistant to the President for National Security Affairs;
    (iv) The Assistant to the President for Economic Policy; and
    (v) The Assistant to the President for Homeland Security and 
Counterterrorism.
    Sec. 4. Duties of the Secretary of the Treasury.
    (a) The functions of the President under subsections (b)(1)(A) 
(relating to review and consideration after notification), (b)(1)(D) 
(relating to unilateral initiation of review and consideration), and 
(m)(3)(A) (relating to inclusion in annual report and designation) of 
the Act are assigned to the Secretary of the Treasury.
    (b) The Secretary of the Treasury shall perform the function of 
issuance of regulations under section 721(h) of the Act. The Secretary 
shall consult the Committee with respect to such regulations prior to 
any notice and comment and prior to their issuance.
    (c) Except as otherwise provided in the Act or this order, the 
chairperson shall have the authority, exclusive of the heads of 
departments or agencies, after consultation with the Committee:
    (i) to act, or authorize others to act, on behalf of the Committee; 
and
    (ii) to communicate on behalf of the Committee with the Congress and 
the public.
    (d) The chairperson shall coordinate the preparation of and transmit 
the annual report to the Congress provided for in the Act and may assign 
to any member of the Committee, as the chairperson determines 
appropriate and consistent with the Act, responsibility for conducting 
studies and providing analyses necessary for the preparation of the 
report.
    (e) After consultation with the Committee, the chairperson may 
request that the Director of National Intelligence begin preparing the 
analysis required by the Act at any time, including prior to acceptance 
of the notice of a transaction, in accordance with otherwise applicable 
law. The Director of National Intelligence shall provide the Director's 
analysis as soon as possible and consistent with section 721(b)(4) of 
the Act.
    Sec. 5. Lead Agency. (a) The lead agency or agencies (``lead 
agency'') shall have primary responsibility, on behalf of the Committee, 
for the specific activity for which the Secretary of the Treasury 
designates it a lead agency.
    (b) In acting on behalf of the Committee, the lead agency shall keep 
the Committee fully informed of its activities. In addition, the lead 
agency shall notify the chairperson of any material action that the lead 
agency proposes to take on behalf of the Committee, sufficiently in 
advance to allow adequate time for the chairperson to consult the 
Committee and provide the Committee's direction to the lead agency not 
to take, or to amend, such action.
    Sec. 6. Reviews and Investigations.
    (a) Any member of the Committee may conduct its own inquiry with 
respect to the potential national security risk posed by a transaction, 
but communication with the parties to a transaction shall occur through 
or in the presence of the lead agency, or the

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chairperson if no lead agency has been designated.
    (b) The Committee shall undertake an investigation of a transaction 
in any case, in addition to the circumstances described in the Act, in 
which following a review a member of the Committee advises the 
chairperson that the member believes that the transaction threatens to 
impair the national security of the United States and that the threat 
has not been mitigated.
    (c) The Committee shall send a report to the President requesting 
the President's decision with respect to a review or investigation of a 
transaction in the following circumstances:
    (i) the Committee recommends that the President suspend or prohibit 
the transaction;
    (ii) the Committee is unable to reach a decision on whether to 
recommend that the President suspend or prohibit the transaction; or
    (iii) the Committee requests that the President make a determination 
with regard to the transaction.
    (d) Upon completion of a review or investigation of a transaction, 
the lead agency shall prepare for the approval of the chairperson the 
appropriate certified notice or report to the Congress called for under 
the Act. The chairperson shall transmit such notice or report to the 
Congress, as appropriate.
    Sec. 7. Risk Mitigation. (a) The Committee, or any lead agency 
acting on behalf of the Committee, may seek to mitigate any national 
security risk posed by a transaction that is not adequately addressed by 
other provisions of law by entering into a mitigation agreement with the 
parties to a transaction or by imposing conditions on such parties.
    (b) Prior to the Committee or a department or agency proposing risk 
mitigation measures to the parties to a transaction, the department or 
agency seeking to propose any such measure shall prepare and provide to 
the Committee a written statement that: (1) identifies the national 
security risk posed by the transaction based on factors including the 
threat (taking into account the Director of National Intelligence's 
threat analysis), vulnerabilities, and potential consequences; and (2) 
sets forth the risk mitigation measures the department or agency 
believes are reasonably necessary to address the risk. If the Committee 
agrees that mitigation is appropriate and approves the risk mitigation 
measures, the lead agency shall seek to negotiate such measures with the 
parties to the transaction.
    (c) A risk mitigation measure shall not, except in extraordinary 
circumstances, require that a party to a transaction recognize, state 
its intent to comply with, or consent to the exercise of any authorities 
under existing provisions of law.
    (d) The lead agency designated for the purpose of monitoring a risk 
mitigation measure shall seek to ensure that adequate resources are 
available for such monitoring. When designating a lead agency for those 
purposes, the Secretary of the Treasury shall consider the agency's 
views on the adequacy of its resources for such purposes.
    (e)(i) Nothing in this order shall be construed to limit the ability 
of a department or agency, in the exercise of authorities other than 
those provided under the Act, to:
    (A) conduct inquiries with respect to a transaction;
    (B) communicate with the parties to a transaction; or
    (C) negotiate, enter into, impose, or enforce contractual provisions 
with the parties to a transaction.
    (ii) A department or agency shall not condition actions or the 
exercise of authorities to which paragraph (i) of this subsection refers 
upon the exercise, or forbearance in the exercise, of its authority 
under the Act or this order, and no authority under the Act shall be 
available for the enforcement of such actions or authorities.
    (f) The Committee may initiate a review of a transaction that has 
previously been reviewed by the Committee only in the extraordinary 
circumstances provided in the Act.
    Sec. 8. Additional Assignments to the Committee. In addition to the 
functions assigned to the Committee by the Act, the Committee shall 
review the implementation of the Act and this order and report thereon 
from time to time to the President, together with such recommendations 
for policy, administrative, or legislative proposals as the Committee 
determines appropriate.

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    Sec. 9. Duties of the Secretary of Commerce. The Secretary of 
Commerce shall:
    (a) obtain, consolidate, and analyze information on foreign 
investment in the United States;
    (b) monitor and, where necessary, improve procedures for the 
collection and dissemination of information on foreign investment in the 
United States;
    (c) prepare for the public, the President or heads of departments or 
agencies, as appropriate, reports, analyses of trends, and analyses of 
significant developments in appropriate categories of foreign investment 
in the United States; and
    (d) compile and evaluate data on significant transactions involving 
foreign investment in the United States.
    Sec. 10. General Provisions. (a) The heads of departments and 
agencies shall provide, as appropriate and to the extent permitted by 
law, such information and assistance as the Committee may request to 
implement the Act and this order.
    (b) Nothing in this order shall be construed to impair or otherwise 
affect:
    (i) authority granted by law to a department or agency or the head 
thereof;
    (ii) functions of the Director of the Office of Management and 
Budget relating to budget, administrative, or legislative proposals; or
    (iii) existing mitigation agreements.
    (c) This order shall be implemented consistent with applicable law 
and subject to the availability of appropriations.
    (d) Officers of the United States with authority or duties under the 
Act or this order shall ensure that, in carrying out the Act and this 
order, the actions of departments, agencies, and the Committee are 
consistent with the President's constitutional authority to: (i) conduct 
the foreign affairs of the United States; (ii) withhold information the 
disclosure of which could impair the foreign relations, the national 
security, the deliberative processes of the Executive, or the 
performance of the Executive's constitutional duties; (iii) recommend 
for congressional consideration such measures as the President may judge 
necessary and expedient; and (iv) supervise the unitary executive 
branch.
    Sec. 11. Revocation. Section 801 of Executive Order 12919 of June 3, 
1994, is revoked.''
    Sec. 2. General Provision. This order is not intended to, and does 
not, create any right or benefit, substantive or procedural, enforceable 
at law or in equity, by any party against the United States, its 
departments, agencies or entities, its officers, employees, or agents, 
or any other person.
                                                George W. Bush
The White House,
January 23, 2008.

[Filed with the Office of the Federal Register, 10:38 a.m., January 24, 
2008]

Note: This Executive order was published in the Federal Register on 
January 25.