Establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector, 19643-19650 [2020-07530]

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• Executive Office of the President

[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Presidential Documents]
[Pages 19643-19650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07530]




                        Presidential Documents 



Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / 
Presidential Documents

[[Page 19643]]


                Executive Order 13913 of April 4, 2020

                
Establishing the Committee for the Assessment of 
                Foreign Participation in the United States 
                Telecommunications Services Sector

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including section 301 of title 3, United 
                States Code, it is hereby ordered as follows:

                Section 1. Policy. The security, integrity, and 
                availability of United States telecommunications 
                networks are vital to United States national security 
                and law enforcement interests.

                Sec. 2. Definitions. For purposes of this order:

                    (a) ``License'' means any license, certificate of 
                public interest, or other authorization issued or 
                granted by the Federal Communications Commission (FCC) 
                after referral of an application by the FCC to the 
                Committee established by subsection 3(a) of this order 
                or, if referred before the date of this order, to the 
                group of executive departments and agencies involved in 
                the review process that was previously in place.
                    (b) ``Application'' means any application, 
                petition, or other request for a license or 
                authorization, or the transfer of a license or 
                authorization, that is referred by the FCC to the 
                Committee established in subsection 3(a) of this order 
                or that was referred by the FCC before the date of this 
                order to the group of executive departments and 
                agencies involved in the review process that was 
                previously in place.
                    (c) ``Intelligence Community'' shall have the 
                meaning assigned to it in subsection 3.5(h) of 
                Executive Order 12333 of December 4, 1981 (United 
                States Intelligence Activities), as amended.
                    (d) ``Mitigation measures'' shall mean both 
                standard and non-standard mitigation measures.
                    (e) ``Standard mitigation measures'' shall be those 
                measures agreed upon by the Committee Members (as 
                defined in subsection 3(b) of this order) and Committee 
                Advisors (as defined in subsection 3(d) of this order).

                Sec. 3. Establishment. (a) There is hereby established 
                the Committee for the Assessment of Foreign 
                Participation in the United States Telecommunications 
                Services Sector (Committee), the primary objective of 
                which shall be to assist the FCC in its public interest 
                review of national security and law enforcement 
                concerns that may be raised by foreign participation in 
                the United States telecommunications services sector. 
                The function of the Committee shall be:

(i) to review applications and licenses for risks to national security and 
law enforcement interests posed by such applications or licenses; and

(ii) to respond to any risks presented by applications or licenses by 
recommending to the FCC, as appropriate and consistent with the provisions 
of this order, that it dismiss an application, deny an application, 
condition the grant of an application upon compliance with mitigation 
measures, modify a license with a condition of compliance with mitigation 
measures, or revoke a license.

                    (b) The Committee shall be composed of the 
                following members (Committee Members):

(i) the Secretary of Defense;

[[Page 19644]]

(ii) the Attorney General;

(iii) the Secretary of Homeland Security; and

(iv) the head of any other executive department or agency, or any Assistant 
to the President, as the President determines appropriate.

                    (c) The Attorney General shall serve as Chair of 
                the Committee (Chair).
                    (d) The following officials shall be advisors to 
                the Committee (Committee Advisors) with no role in the 
                duties set forth in sections 4 through 11 of this order 
                except as provided in subsections 6(c), 9(f), 9(g), 
                10(g), and 11(d) of this order:

(i) the Secretary of State;

(ii) the Secretary of the Treasury;

(iii) the Secretary of Commerce;

(iv) the Director of the Office of Management and Budget;

(v) the United States Trade Representative;

(vi) the Director of National Intelligence;

(vii) the Administrator of General Services;

(viii) the Assistant to the President for National Security Affairs;

(ix) the Assistant to the President for Economic Policy;

(x) the Director of the Office of Science and Technology Policy;

(xi) the Chair of the Council of Economic Advisers; and

(xii) any other Assistant to the President, as the President determines 
appropriate.

                    (e) The Committee Members and Committee Advisors 
                may, subject to the limitations in this order, 
                designate a senior executive from their entity to 
                perform the functions described in this order on their 
                behalf.

                Sec. 4. Duties of Committee Chair and Members. (a) The 
                Chair shall designate one or more Committee Members to 
                serve as the lead for executing any function of the 
                Committee (Lead Member). The Chair may assign to a Lead 
                Member any or all of the following responsibilities as 
                appropriate and consistent with their statutory 
                authorities:

(i) submitting to applicants or licensees any questions or requests for 
information to establish facts about an application or license necessary to 
conduct the reviews and assessments described in sections 5 and 6 of this 
order;

(ii) identifying risks to national security or law enforcement interests of 
the United States raised by an application or license, in consultation, as 
appropriate, with other Committee Members;

(iii) coordinating with other Committee Members on the reviews and 
assessments described in sections 5 and 6 of this order;

(iv) proposing, in coordination with the Chair, any mitigation measures 
necessary to address any risk to national security or law enforcement 
interests of the United States identified through the risk-based analysis 
described in subsection 9(c) of this order;

(v) coordinating with other Committee Members and communicating with 
applicants or licensees regarding any mitigation measures necessary to 
address risks to national security and law enforcement interests of the 
United States;

(vi) monitoring compliance with, and coordinating with the Committee 
regarding, any mitigation measure the Committee recommends be imposed by 
the FCC as a condition on a license; or

(vii) any related responsibilities as specified by the Chair.

                    (b) Except as otherwise provided in this order, the 
                Chair shall have the exclusive authority to act, or to 
                authorize other Committee Members to

[[Page 19645]]

                act, on behalf of the Committee, including 
                communicating with the FCC and with applicants or 
                licensees on behalf of the Committee.
                    (c) In acting on behalf of the Committee, the Chair 
                or a Lead Member, as applicable, shall keep the 
                Committee fully informed of the Chair's or Lead 
                Member's respective activities taken under this order 
                and shall consult with the Committee before taking any 
                material actions under this order.

                Sec. 5. Committee Application Review Process. (a) The 
                Committee shall review and assess applications to 
                determine whether granting a license or the transfer of 
                a license poses a risk to national security or law 
                enforcement interests of the United States.

                    (b) Upon referral by the FCC of an application, the 
                Committee shall conduct an initial review of the 
                application to evaluate whether granting the requested 
                license or transfer of license may pose a risk to 
                national security or law enforcement interests of the 
                United States.

(i) During the initial review, the Committee may determine:

  (A) that granting an application for a license or the transfer of a 
license raises no current risk to national security or law enforcement 
interests;

  (B) that any identified risk to national security or law enforcement 
interests raised by an application may be addressed through standard 
mitigation measures recommended by the Committee; or

  (C) that a secondary assessment of an application is warranted because 
risk to national security or law enforcement interests cannot be mitigated 
by standard mitigation measures.

(ii) If the Committee determines that granting the application does not 
raise a current risk to national security or law enforcement interests or 
that standard mitigation measures would mitigate any risk to national 
security or law enforcement interests, such a determination and any 
recommendations shall be communicated to the FCC in a manner consistent 
with sections 9 and 10 of this order.

(iii) Except as provided in subsection 5(d) of this order, any initial 
review shall be completed before the end of the 120-day period beginning on 
the date the Chair determines that the applicant's responses to any 
questions and information requests from the Committee are complete.

                    (c) When the Committee has determined that a 
                secondary assessment of an application is warranted, it 
                shall conduct such an assessment to further evaluate 
                the risk posed to national security and law enforcement 
                interests of the United States and to determine whether 
                to make any recommendations pursuant to section 9 of 
                this order. Any secondary assessment of an application 
                shall be completed no more than 90 days after the 
                Committee's determination that a secondary assessment 
                is warranted. The Chair shall notify the FCC of a 
                determination that a secondary assessment is warranted.
                    (d) During an initial review under subsection 5(b) 
                of this order or a secondary assessment under 
                subsection 5(c) of this order, if an applicant fails to 
                respond to any additional requests for information 
                after the Chair determines the responses are complete, 
                the Committee may either extend the initial review or 
                secondary assessment period or make a recommendation to 
                the FCC to dismiss the application without prejudice. 
                The Chair shall notify the FCC of a determination that 
                the applicant's responses are complete, of any 
                extensions of the initial review period, or when the 
                Committee recommends dismissal under this subsection.

                Sec. 6. Committee License Review Process. (a) The 
                Committee may review existing licenses to identify any 
                additional or new risks to national security or law 
                enforcement interests of the United States.

                    (b) The Committee shall determine whether to review 
                an existing license by majority vote of the Committee 
                Members.
                    (c) If the Committee conducts such a review, it 
                shall promptly notify the Committee Advisors.

[[Page 19646]]

                Sec. 7. Threat Analysis by the Director of National 
                Intelligence. (a) For each license or application 
                reviewed by the Committee, the Director of National 
                Intelligence shall produce a written assessment of any 
                threat to national security interests of the United 
                States posed by granting the application or maintaining 
                the license. The Director of National Intelligence 
                shall solicit and incorporate the views of the 
                Intelligence Community, as appropriate.

                    (b) The analysis required under subsection (a) of 
                this section shall be provided to the Committee within 
                the earlier of 30 days from the date on which the Chair 
                determines that an applicant's or licensee's responses 
                to any questions and requests for information from the 
                Committee are complete or 30 days from the date on 
                which the Chair requests such an analysis. Such an 
                analysis may be supplemented or amended as appropriate 
                or upon a request for additional information by the 
                Chair.
                    (c) The Director of National Intelligence shall 
                ensure that the Intelligence Community continues to 
                analyze and disseminate to the Committee any additional 
                relevant information that may become available during 
                the course of a review or assessment conducted with 
                respect to an application or license.

                Sec. 8. Requests for Information. In furtherance of its 
                reviews and assessments of applications and licenses as 
                described in this section, the Committee may seek 
                information from applicants, licensees, and any other 
                entity as needed. Information submitted to the 
                Committee pursuant to this subsection and analysis 
                concerning such information shall not be disclosed 
                beyond Committee Member entities and Committee Advisor 
                entities, except as appropriate and consistent with 
                procedures governing the handling of classified or 
                otherwise privileged or protected information, under 
                the following circumstances:

                    (a) to the extent required by law or for any 
                administrative or judicial action or proceeding, or for 
                law enforcement purposes;
                    (b) to other governmental entities at the 
                discretion of the Chair, provided that such entities 
                make adequate assurances to the Chair that they will 
                not further disclose the shared information, including 
                to members of the public; or
                    (c) to the Committee on Foreign Investment in the 
                United States with respect to transactions reviewed by 
                that Committee pursuant to 50 U.S.C. 4565, in which 
                case this information and analysis shall be treated 
                consistent with the disclosure protections of 50 U.S.C. 
                4565(c).

                Sec. 9. Recommendations by the Committee Pursuant to 
                the Committee Review Process. (a) With respect to 
                applications that are reviewed or assessed pursuant to 
                section 5 of this order, the Committee shall:

(i) advise the FCC that the Committee has no recommendation for the FCC on 
the application and no objection to the FCC granting the license or 
transfer of the license;

(ii) recommend that the FCC deny the application due to the risk to the 
national security or law enforcement interests of the United States; or

(iii) recommend that the FCC only grant the license or transfer of the 
license contingent on the applicant's compliance with mitigation measures, 
consistent with section 10 of this order.

                    (b) With respect to a license reviewed pursuant to 
                section 6 of this order, the Committee may, when 
                appropriate:

(i) recommend that the FCC modify the license to include a condition of 
compliance with mitigation measures negotiated by the Committee;

(ii) recommend that the FCC revoke the license due to the risk to national 
security or law enforcement interests of the United States; or

(iii) take no action with respect to the license.

[[Page 19647]]

                    (c) Any recommendation made by the Committee 
                pursuant to subsections (a) and (b) of this section 
                shall be based on a written risk-based analysis, 
                conducted by the Committee Member entity or entities 
                proposing the denial, mitigation measures, 
                modification, revocation, or no action.
                    (d) The Committee shall make the recommendations 
                described in subsections (a)(ii), (a)(iii), (b)(i), and 
                (b)(ii) of this section if it determines that there is 
                credible evidence that the application or license poses 
                a risk to the national security or law enforcement 
                interests of the United States.
                    (e) The Committee shall attempt to reach consensus 
                on any recommendation authorized by this order. If 
                senior executive Committee officials designated 
                pursuant to subsection 3(e) of this order cannot reach 
                consensus on a recommendation, the Chair shall present 
                the issue to the Committee Members, who shall determine 
                the Committee recommendation by majority vote. If the 
                vote results in a tie, the Chair shall determine the 
                recommendation.
                    (f) If the Committee's determination is a 
                recommendation to deny an application, to grant an 
                application contingent on compliance with non-standard 
                mitigation measures, to modify a license to condition 
                it upon compliance with non-standard mitigation 
                measures, or to revoke a license, the Chair shall 
                notify the Committee Advisors and, to the extent 
                consistent with applicable law, provide them all 
                available assessments, evaluations, or other analyses 
                regarding such determination. Within 21 days of the 
                notification, the Committee Advisors shall advise the 
                Chair whether they oppose the recommendation.

(i) If one or more of the Committee Advisors opposes the recommendation, 
the senior executives designated by the Committee Members and Committee 
Advisors shall promptly confer in an effort to reach consensus on a 
recommendation. If consensus is reached, the recommendation shall be 
provided to the FCC consistent with subsection 9(h) of this order.

(ii) If the senior executives designated by the Committee Members and 
Committee Advisors do not reach consensus, the Chair shall present the 
issue to the Committee Members and the Committee Advisors to seek to 
resolve any objections within 30 days of the notification by the Chair of a 
recommendation to deny or to grant an application contingent on compliance 
with non-standard mitigation, or within 60 days in the case of a 
recommendation to modify a license to condition it upon compliance with 
non-standard mitigation measures or to revoke a license. Committee Members 
and Committee Advisors may consider any submissions by the Committee 
Advisors (e.g., a countervailing risk assessment), as appropriate.

(iii) If the Committee Members and Committee Advisors are unable to reach 
consensus through the foregoing process, the Committee Members identified 
in subsection 3(b) of this order shall determine a recommendation by 
majority vote. If the vote results in a tie, the Chair shall determine the 
recommendation.

                    (g) The Chair shall notify the President of any 
                intended recommendation, and any opposition thereto by 
                a Committee Member or Committee Advisor, within 7 days 
                of a majority or tie vote held under subsection 9(e) or 
                9(f)(iii) of this order if either the recommendation or 
                any opposition thereto by a Committee Member or 
                Committee Advisor involves the denial of an 
                application, granting an application contingent on non-
                standard mitigation measures, modifying a license to 
                condition it upon compliance with non-standard 
                mitigation measures, or revoking a license. The FCC 
                will receive notice of the recommendation, consistent 
                with subsection 9(h) of this order, not earlier than 15 
                days after the date on which the President is notified 
                of the intended action.
                    (h) Except as provided in subsection (b)(iii) of 
                this section, the Chair, on behalf of the Committee, 
                shall notify the FCC through the Administrator of the 
                National Telecommunications and Information 
                Administration (NTIA) of a final recommendation made 
                pursuant to this section. The Administrator

[[Page 19648]]

                of NTIA shall notify the FCC of the recommendation 
                within 7 days of the notification from the Chair.
                    (i) As necessary and in accordance with applicable 
                law and policy, including procedures governing the 
                handling of classified or otherwise privileged or 
                protected information, the Committee may consider 
                classified information and otherwise privileged or 
                protected information in determining what 
                recommendation to make to the FCC through the 
                Administrator of NTIA under this section, and may 
                provide such information to the FCC as necessary on an 
                ex parte basis.

                Sec. 10. Mitigation of Risk and Monitoring. (a) The 
                Committee may recommend to the FCC, consistent with 
                section 9 of this order, that the FCC condition the 
                granting of a license or transfer of a license on 
                compliance with any mitigation measures in order to 
                mitigate a risk to the national security or law 
                enforcement interests of the United States arising from 
                the application.

                    (b) The Committee may recommend to the FCC, 
                consistent with section 9 of this order, that the FCC 
                modify a license to condition it upon compliance with 
                any mitigation measures in order to mitigate a risk to 
                national security or law enforcement interests of the 
                United States arising from the license.
                    (c) Consistent with subsection 4(a)(v) of this 
                order, the Chair or assigned Lead Member shall 
                communicate any mitigation measures proposed by the 
                Committee to the applicant or licensee.
                    (d) Any mitigation measures negotiated pursuant to 
                this section shall be based on a written risk-based 
                analysis.
                    (e) The Committee shall monitor any mitigation 
                measures imposed by the FCC as a condition on a 
                license.

(i) Committee Member entities, as appropriate, shall report to the 
Committee regarding any material noncompliance with any mitigation measures 
imposed by the FCC as a condition on a license as a result of the 
Committee's recommendation under subsections (a) through (d) of this 
section.

(ii) The Committee, in consultation with the FCC, as appropriate, and in a 
manner that does not unduly constrain Committee resources, shall develop 
methods for monitoring compliance with any mitigation measures imposed by 
the FCC as a condition on a license as a result of the Committee's 
recommendation under subsections (a) through (d) of this section.

                    (f) If the Committee determines that a licensee has 
                not complied with a mitigation measure and has not 
                cured any such noncompliance in a satisfactory manner, 
                the Committee may recommend actions consistent with 
                subsection 9(b) of this order.
                    (g) When requested by the Chair, the Director of 
                National Intelligence shall provide analyses assessing 
                threats related to risk mitigation, compliance 
                monitoring, and enforcement to Committee Member 
                entities and Committee Advisor entities that are 
                monitoring compliance with mitigation measures imposed 
                by the FCC as conditions on licenses as a result of 
                Committee recommendations under subsections (a) through 
                (d) of this section.
                    (h) This order does not constrain the discretion of 
                executive departments or agencies, pursuant to any 
                relevant authority not described in this order, to:

(i) conduct inquiries with respect to an application or license;

(ii) communicate with any applicant, licensee, or other necessary party; or

(iii) negotiate, enter into, impose, or enforce contractual provisions with 
an applicant or licensee.

                Sec. 11. Implementation. (a) Executive departments and 
                agencies shall take all appropriate measures within 
                their authority to implement the provisions of this 
                order.

                    (b) The Department of Justice shall provide such 
                funding and administrative support for the Committee as 
                the Committee may require. The heads

[[Page 19649]]

                of executive departments and agencies shall provide, as 
                appropriate and to the extent permitted by law, such 
                resources, information, and assistance as required to 
                implement this order within their respective agencies, 
                including the assignment of staff to perform the duties 
                described in this order. An Intelligence Community 
                liaison designated by the Director of National 
                Intelligence shall support the Committee, consistent 
                with applicable law.
                    (c) Within 90 days from the date of this order, the 
                Committee Members shall enter into a Memorandum of 
                Understanding among themselves and with the Director of 
                National Intelligence (or the Director's designee) 
                describing their plan to implement and execute this 
                order. The Memorandum of Understanding shall, among 
                other things, delineate questions and requests for 
                applicants and licensees that may be needed to acquire 
                information necessary to conduct the reviews and 
                assessments described in sections 5 and 6 of this 
                order, define the standard mitigation measures 
                developed in accordance with section 2(e) of this 
                order, and outline the process for designating a Lead 
                Member as described in section 4 of this order.
                    (d) The Chair, in coordination with the Committee 
                Members and the Committee Advisors, shall review the 
                implementation of this order and provide a report to 
                the President on an annual basis that identifies 
                recommendations for relevant policy, administrative, or 
                legislative proposals.

                Sec. 12. 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;

                    (b) 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, 
                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.

[[Page 19650]]

                    (d) If any provision of this order, or the 
                application of any provision to any person or 
                circumstances, is held to be invalid, the remainder of 
                this order and the application of any of its other 
                provisions to any other persons or circumstances shall 
                not be affected thereby.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    April 4, 2020.

[FR Doc. 2020-07530
Filed 4-7-20; 8:45 am]
Billing code 3295-F0-P