By the authority vested in me as President by the Constitution and 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 sorted as follows:
Section 1. Policy. The United States welcomes and supports foreign investment, consistent with the protection of national security. The US commitment to open investment is a cornerstone of our economic policy and provides the US with substantial economic benefits, including “promoting economic growth, productivity, competitiveness and job creation by strengthening so does national security, “as Congress acknowledged in section 1702 (b) (1) of the 2018 Foreign Investment Risk Review Modernization Act (SIGNATURE) (subtitle A of Title XVII of Public Law 115-232). Some investments in the United States by foreign persons, however, pose risks to the national security of the United States, which is why the United States maintains a robust foreign investment review process focused on identifying and managing 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 investments that pose national security risks, as recognized by Congress in section 1702 (b) (4) of the SIGNATURE. One factor that the United States Foreign Investment Committee (Committee) must consider, as highlighted by Congress in section 1702 (c) (1) of the SIGNATURE, is that national security risks may arise from foreign investments involving ” a country of concern that has a demonstrated or stated strategic goal of acquiring a type of critical technology or infrastructure that would affect US leadership in areas related to homeland security. ” In this sense, I have previously emphasized in Executive Order 14034 of June 9, 2021 (Protecting Americans’ Sensitive Data From Foreign Adversaries) and I have emphasized in that order the risks presented by foreign adversaries accessing the data of US persons. With respect to investments that directly or indirectly involve foreign adversaries or other countries of special interest, what might otherwise appear to be an economic transaction undertaken for commercial purposes may actually present an unacceptable risk to US national security due to the legal environment. , of the intentions or capabilities of the foreign person, including foreign governments, involved in the transaction. It is the policy of the US government to continue responding to these risks as they evolve, including through a robust review of foreign investment in US companies.
In light of these risks, this decree provides indications to the Committee to ensure that, in reviewing the operations under its responsibility (covered operations), the Committee’s review remains responsive to the evolution of national security risks, also by elaborating and expanding the factors identified in subsections (f) (1) – (10) of section 721. This order must be implemented consistent with the Committee’s statutory mandate to determine the effects of each covered transaction reviewed by the US National Security Committee.
Section 2. Elaboration on the existing statutory factors. (a) In considering the factors described in subsection (f) (3) of section 721, the Committee, taking into account national security requirements, shall consider the following, as appropriate:
(i) It is important for national security that the Committee continues to assess the effect of foreign investment on the domestic ability to meet national security requirements, including requirements beyond the defense industrial base. In particular, the resilience of some critical US supply chains could have national security implications. The United States recognizes the importance of cooperating with its allies and partners to protect supply chains; however, some foreign investment can undermine supply chain resilience efforts and therefore national security, making the United States vulnerable to future supply disruptions. These vulnerabilities can occur if an investment transfers ownership, rights, or control in relation to certain manufacturing capabilities, services, critical mineral resources, or technologies critical to national security, including because they are critical to the resilience of the U.S. supply chain. to a foreign person who may take actions that threaten to compromise the national security of the United States as a result of the transaction, or to other foreign persons, including foreign governments, with whom the foreign person has business, investment, non-economic or other connections (ties of relevant third parties) that could cause the transaction to pose a threat to national security.
(ii) The Committee shall consider, where appropriate, the effect of the contemplated operation on the resilience and security of the supply chain, both inside and outside the defense industrial base, in production capacities, in services, in critical mineral resources or technologies critical to national security, including: microelectronics, artificial intelligence, biotechnology and bioproduction, quantum computing, advanced clean energy (such as battery and hydrogen storage), climate adaptation technologies, critical materials (such as lithium and rare earths), elements of the agricultural industrial base that have implications for food security and any other sectors identified in section 3 (b) or section 4 (a) of Executive Order 14017 of February 24, 2021 (American supply chains) .
(A) The Committee will consider, as appropriate, the degree of involvement in the US supply chain by a foreign person who is party to the covered transaction and who may take actions that threaten to compromise US national security such as a result of the transaction, or who may have relevant third party links that could cause the transaction to pose such a threat.
(B) The Committee will consider, as appropriate, US capacity in relation to production capacity, services, critical mineral resources or technologies, including those described in subsection (a) (ii) of this section; the degree of diversification through alternative suppliers along the supply chain, including suppliers located in allied or partner economies; if the US company that is party to the hedged transaction provides, directly or indirectly, the US government, energy industry base, or defense industrial base; and the concentration of ownership or control by the foreign entity in a given supply chain, among other factors that the Committee deems appropriate in assessing whether the covered transaction could undermine the resilience and security of supply chains critical to the national security.
(b) In considering the factors described in subsection (f) (5) of section 721, the Committee, taking into account national security requirements, shall consider the following, as appropriate:
(i) While foreign investment can in many circumstances help foster domestic innovation, it is important to protect US technology leadership by addressing the risks posed by foreign investment that could take actions that threaten to undermine the national security of states United as a result of the transaction and verifying whether those persons have any relevant third party connections that could cause the transaction to pose such a threat.
(ii) The Committee will assess, as appropriate, whether a contemplated transaction involves manufacturing capabilities, services, critical mineral resources, or technologies critical to US technology leadership and hence national security, such as microelectronics, artificial intelligence, biotechnology and bioproduction. , quantum computing, advanced clean energy and climate adaptation technologies. The Committee also considers, where appropriate, the links of relevant third parties that could cause the transaction to threaten to compromise the national security of the United States.
(iii) The committee will consider, as appropriate, whether a covered transaction could reasonably involve future advances 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, periodically publishes a list of technology sectors, including those technologies listed in subsection (b) (ii) of this section, that it ratings are critical to US technology leadership in areas relevant to national security. The OSTP, as appropriate, will build on the results of other US government efforts to identify key technology sectors for US technology leadership. The Committee will consider the list described in this paragraph, if applicable.
Section 3. Additional factors to consider. (a) In addition to the factors identified in subsections (f) (1) – (10) of section 721, the Committee considers, in reviewing the effects of a covered transaction on US national security, the following factors relating to trends aggregates of industry investments that may impact the impact of a single hedged transaction on national security:
(i) Incremental investments over time in an industry or technology may cede, part-by-part, internal development or control in that sector or technology and may give a foreign person who could take actions that threaten to compromise the national security of the United States as a result of the transaction, or related links with third parties that could cause the transaction to pose such a threat, control or rights in United States business activities in a way that could pose a national security risk. A series of acquisitions in the same business in the United States, similar or related, involved in activities that are critical to national security or in terms that involve national security may involve a particular covered transaction that gives rise to a national security risk when considered in the context of the operations that preceded it. Collectively, these transactions can facilitate harmful technology transfer in key sectors or otherwise damage national security through the cumulative effect of these investments. As Congress has identified in SIGNATURE section 1702 (c) (2), the Committee may consider “the cumulative control or pattern of recent transactions involving any type of critical infrastructure, energy resource, critical material or technology by any a foreign government or a 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 hedged transaction that were not otherwise apparent.
(ii) The Committee considers, as appropriate, in the context of the Committee’s review of a hedged transaction, the risks arising from the hedged transaction in the context of multiple acquisitions or investments in a single sector or related production capacities, services, mineral resources, or technologies, from any foreign person who may take actions that threaten to endanger U.S. national security as a result of the transaction, or that involve ties to relevant third parties that could 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 International Trade Administration of the Department of Commerce provide the Committee with an analysis of the sector or sectors in which the business operates in the United States and the cumulative control of, or the pattern of recent transactions by, a foreign person, including, directly or indirectly, a foreign government, in that sector or industry.
(b) In addition to the factors identified in subsections (f) (1) – (10) of section 721, the Committee considers the following risk factors when reviewing the effects of a covered transaction on US national security for cybersecurity resulting from a covert transaction that threaten to compromise national security:
(i) It is important for the United States to ensure that foreign investment in US companies does not affect US cybersecurity. Investments by foreign individuals with the ability and intent to conduct cyber intrusions or other malicious cyber-enabled activities, such as activities designed to affect the outcome of any election for federal, state, tribal, local or territorial office; the functioning of the critical infrastructures of the United States; o The confidentiality, integrity, or availability of communications in the United States may pose a national security risk. Congress, in SIGNATURE section 1702 (c) (6), identified “exacerbation or creation of new cybersecurity vulnerabilities” as a relevant consideration for the Committee when considering national security risks arising from a transaction. blanket. The Foreign Investment Review is an important tool in the broader US efforts to ensure US cybersecurity.
(ii) The Committee will consider, as appropriate, whether a covered transaction may provide a foreign person who may take actions that threaten to compromise the national security of the United States as a result of the transaction, or their relevant links with third parties that could result in that the transaction poses such a threat, with direct or indirect access to capabilities or databases of information and systems on which threat actors could engage in cyber-enabled malicious activities affecting the interests of the United States or the people of the United States, among which:
(A) activity designed to undermine the security or integrity of data in storage or databases or systems hosting sensitive data;
(B) activity designed to interfere with elections in the United States, US critical infrastructure, defense industrial base, or other cyber security national security priorities set out in Executive Order 14028 of May 12, 2021 (Enhanced of the nation’s cyber security); And
(C) sabotage of critical energy infrastructures, including smart grids.
(iii) The Committee will also consider, as appropriate, the attitudes, practices, skills and access to cybersecurity of both the foreign person and US business activities that might allow a foreign person who might take actions that threaten to compromise the national security of the United States as a result of the transaction, or related links with third parties that could cause the transaction to pose such a threat, to manifest cyber intrusions and other cyber-enabled malicious activities within of the United States.
(c) In addition to the factors identified in subsections (f) (1) – (10) of section 721, the Committee considers, in reviewing the effects of a covered transaction on United States national security, the following factors in relation to national security issues related to sensitive data:
(i) Data is an increasingly powerful tool for surveillance, tracking, tracking and targeting of individuals or groups of individuals, with potential negative impacts on national security. In section 1702 (c) (5) of the SIGNATURE, Congress recognized that the Committee may consider whether a covered transaction may “directly or indirectly expose personally identifiable information, genetic information, or other sensitive data of US citizens to access by a foreign government or a foreign person who can exploit such information in a way that threatens national security. ”In addition, technological advances, combined with access to large data sets, increasingly allow for re-identification or de-anonymization of what was once unidentifiable data. Therefore, it is important that the US government is aware of the threats posed by advances in such technology, also considering the potential risks posed by foreigners who could exploit the access to certain data on US persons to target individuals or groups within the US a d national security year. Accordingly, the Committee will consider whether foreign investments in US companies that have access to or hold sensitive data of US persons, including health and biological data, involve a foreign person who could take actions that threaten to compromise the national security of the United States. following the transaction, including whether the foreign person may have relevant third party links that could cause the transaction to pose such a threat.
(ii) The Committee will consider, as appropriate, whether a hedged transaction involves a U.S. business that:
(A) has access to sensitive data of US persons, including the health, digital identity or other biological data of US persons and any data that could be identifiable or anonymised, which could be exploited to distinguish or trace the identity of an individual in a way that threatens national security; or
(B) has access to data on subpopulations 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 way that threatens national security.
(iii) The Committee will also consider, as appropriate, whether a covered transaction involves the transfer of sensitive US person data to a foreign person who may take action that threatens to compromise US national security as a result of the transaction; and if the foreign entity has links with relevant third parties who have tried 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.
Section 4. Periodic review. Consistent with the policy described in section 1 of this ordinance, it is important that the Committee, on an ongoing basis, continues to review its processes, practices and regulations and continues to make all necessary and appropriate updates to ensure that consideration by the National Security Risk Committee remains solid along with changes in the national security landscape. Accordingly, the Committee regularly reviews its processes, practices and regulations and periodically provides the Assistant President for Homeland Security Affairs with a report documenting the results of its review. The report also includes any resulting policy recommendations that the Committee deems necessary to address evolving national security risks.
Section 5. Definitions. For the purposes of this provision, the terms will have the same meaning attributed to them in article 721 and in the regulations promulgated by the Committee pursuant to article 721.
Section 6. General provisions. (a) Nothing in this order should be interpreted in a way that compromises or otherwise affects:
(i) the authority conferred by law on a department or executive agency, or its head; or
(ii) the functions of the Director of the Management and Budget Office relating to budgetary, administrative or legislative proposals.
(b) This order must be implemented in accordance with applicable law and subject to the availability of funds.
(c) This order does not intend and is without prejudice to the requirements of section 721 relating to the scope of the Committee’s jurisdiction.
(d) This order is not for and does not create any right or benefit, material or procedural, enforceable by 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.
JOSEPH R. BIDEN JR.
THE WHITE HOUSE, September 15, 2022.
