Executive Order on Amending Executive Order 13959–Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code,
I, DONALD J. TRUMP, President of the United States of America, in order to take additional steps with respect to the national emergency declared in Executive Order 13959 of November 12, 2020 (Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies), to address the threat posed by the People’s Republic of China’s military-industrial complex, hereby order as follows:
Section 1. Section 1(b) and (c) of Executive Order 13959 are amended to read as follows:
“(b) Notwithstanding subsection (a)(i) of this section, any transaction entered into on or before 11:59 p.m. eastern standard time on November 11, 2021, solely to divest, in whole or in part, from securities that any United States person held as of 9:30 a.m. eastern standard time on January 11, 2021, in a Communist Chinese military company as defined in section 4(a)(i) of this order, is permitted. Effective at 11:59 p.m. eastern standard time on November 11, 2021, possession of any such securities by a United States person is prohibited.
(c) Notwithstanding subsection (a)(ii) of this section, for a person determined to be a Communist Chinese military company pursuant to section 4(a)(ii) or (iii) of this order, any transaction entered into on or before 365 days from the date of such determination, solely to divest, in whole or in part, from securities that any United States person held in such person, as of the date 60 days from the date of such determination, is permitted. Effective at 11:59 p.m. eastern standard time on the date 365 days after the date of such determination, possession of any such securities by a United States person is prohibited.”
Sec. 2. Subsections (a)(ii) and (iii) of section 4 of Executive Order 13959 are amended to read as follows:
“(ii) any person that the Secretary of Defense, in consultation with the Secretary of the Treasury, publicly lists as a Communist Chinese military company meeting the criteria in section 1237(b)(4)(B) of Public Law 105-261, as amended by section 1233 of Public Law 106-398 and section 1222 of Public Law 108-375, and that operates directly or indirectly in the United States or any of its possessions, until such time as the Secretary of Defense removes such person from such list. This definition shall apply regardless of whether the Secretary of Defense must provide the report described in section 1237(b)(2) of Public Law 105-261, as amended by section 1233 of Public Law 106-398 and section 1222 of Public Law 108-375; or
(iii) any person that the Secretary of the Treasury publicly lists as meeting the criteria described in section (a)(ii) of this section, or publicly lists as a subsidiary of a person already determined to be a Communist Chinese military company, until the Secretary of the Treasury determines that such person no longer meets that criteria and removes such person from such list.”
Sec. 3. Section 4(e) of Executive Order 13959 is amended to read as follows:
“(e) the term “transaction” means the purchase for value, or sale, of any publicly traded security; and”.
Sec. 4. 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.
DONALD J. TRUMP
THE WHITE HOUSE,
January 13, 2021.
[On 6-3-2021, this EO was revoked in its entirety by EO 14032] Note that EO 14032 removed the key substantive change that this EO made to the original EO 13959, i.e. notion of the mere "possession" of a covered security being prohibited subsequent to the closing of the "divestment window".
1) For consolidated commentary on EO 13959, as amended, refer to Consolidated Comment on the Chinese Military Companies Sanctions Under the EO Issued June 3, 2021.
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2) Summary of amendments made to EO 13959 by this now-revoked EO:
a) Section 4(e) was amended so that “transactions” within the scope of the prohibition explicitly include the “sale” of covered securities. Prior to the amendment, “sales” were judged by OFAC to be within the scope of the prohibition that applied on its face to “purchases for value,” but this is now explicit.
b) The “divestment carveout” sections 1(b)-(c) were amended to (i) replace “purchases for value or sales” with the word “transaction,” reflecting the fact that the term “transaction” now includes all purchases for value and sales, and (ii) to specify that “possession of [covered] securities by a United States person is prohibited” after the divestment carveout expires. Prior to the amendment, the mere holding of a covered security subsequent to the expiry of the divestment carveout did not appear to be prohibited (expressly or impliedly).
c) Section 4(a)(ii) and (iii) were amended to make what appear to be technical changes. Reference to “determin[ations]” of CCMC status by the Secretary of Defense have been replaced with “public[] list[ings].” Compare FAQ 864. This may have been done to clarify that the "clock" on the effective date of prohibitions starts running as of the date of a public listing by the Secretary of Defense, rather than the date of a “determination” (which may theoretically precede the public listing).
In addition, the following clarifying language was added to end of section 4(a)(ii):
"This definition shall apply regardless of whether the Secretary of Defense must provide the report described in section 1237(b)(2) of Public Law 105-261, as amended by section 1233 of Public Law 106-398 and section 1222 of Public Law 108-375."