Proposed Rule2023-09259
Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 5, 2023
Issuing agencies
Treasury DepartmentInvestment Security Office
Abstract
The rule would amend the regulations that implement the provisions relating to real estate transactions pursuant to section 721 of the Defense Production Act of 1950, as amended. Specifically, the rule would add eight military installations to the appendix and make corresponding revisions to the definition of the term "military installation."
Full Text
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<title>Federal Register, Volume 88 Issue 87 (Friday, May 5, 2023)</title>
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[Federal Register Volume 88, Number 87 (Friday, May 5, 2023)]
[Proposed Rules]
[Pages 29003-29005]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09259]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88 , No. 87 / Friday, May 5, 2023 / Proposed
Rules
[[Page 29003]]
DEPARTMENT OF THE TREASURY
Office of Investment Security
31 CFR Part 802
Provisions Pertaining to Certain Transactions by Foreign Persons
Involving Real Estate in the United States
AGENCY: Office of Investment Security, Department of the Treasury.
ACTION: Proposed rule.
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SUMMARY: The rule would amend the regulations that implement the
provisions relating to real estate transactions pursuant to section 721
of the Defense Production Act of 1950, as amended. Specifically, the
rule would add eight military installations to the appendix and make
corresponding revisions to the definition of the term ``military
installation.''
DATES: Written comments must be received by June 5, 2023.
ADDRESSES: Written comments may be submitted through one of two
methods:
<bullet> Electronic Submission: Comments may be submitted
electronically through the Federal government eRulemaking portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Electronic submission of comments allows
the commenter maximum time to prepare and submit a comment, ensures
timely receipt, and enables the Treasury Department to make the
comments available to the public.
<bullet> Mail: Send to U.S. Department of the Treasury, Attention:
Meena Sharma, Deputy Director of Investment Security Policy and
International Relations, 1500 Pennsylvania Avenue NW, Washington, DC
20220.
We encourage comments to be submitted via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please submit comments only and include your name
and company name (if any) and cite ``Provisions Pertaining to Certain
Transactions by Foreign Persons Involving Real Estate in the United
States'' in all correspondence. In general, the Treasury Department
will post all comments to <a href="https://www.regulations.gov">https://www.regulations.gov</a> without change,
including any business or personal information provided, such as names,
addresses, email addresses, or telephone numbers. All comments
received, including attachments and other supporting material, will be
part of the public record and subject to public disclosure. You should
only submit information that you wish to make publicly available.
FOR FURTHER INFORMATION CONTACT: Meena R. Sharma, Deputy Director of
Investment Security Policy and International Relations; or James
Harris, Senior Policy Advisor, at U.S. Department of the Treasury, 1500
Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-
3425; email: <a href="/cdn-cgi/l/email-protection#3d7e7b74686e137b746f6f707c7d494f585c4e484f44135a524b"><span class="__cf_email__" data-cfemail="0d4e4b44585e234b445f5f404c4d797f686c7e787f74236a627b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The regulations at part 802 to title 31 of the Code of Federal
Regulations (part 802) implement the provisions in section 721 of the
Defense Production Act of 1950, as amended (DPA), and establish the
process and procedures of the Committee on Foreign Investment in the
United States (CFIUS) with respect to reviewing transactions involving
the purchase or lease by, or concession to, a foreign person of certain
real estate in the United States.
The final rule establishing part 802 (see 85 FR 3158) identifies a
subset of military installations around which certain real estate
transactions are covered under CFIUS jurisdiction. The specific
military installations are listed in appendix A by name and location.
Section 802.227 sets forth the category descriptions of military
installations identified in Appendix A. The preamble to the final rule
establishing part 802 noted that the military installations listed in
the appendix were determined by the U.S. Department of Defense based
upon an evaluation of national security considerations, and that the
Department of Defense will continue on an ongoing basis to assess its
military installations and the geographic scope set under the rules to
ensure appropriate application in light of national security
considerations.
This proposed rule would make certain amendments to part 802 as a
result of the ongoing evaluation of military installations by the
Department of Defense.
II. Discussion of the Rule
This proposed rule would amend the definition of ``military
installation'' at Sec. 802.227 and add eight military installations to
the list at appendix A.
A. Military Installation
This proposed rule includes an amended definition of the term
``military installation.'' As defined in the existing regulations, the
term ``military installation'' means any site that meets certain
category descriptions, as identified in the list at appendix A to part
802. The definition of ``military installation'' would be amended with
respect to paragraph (m) of Sec. 802.227. This proposed rule would add
Arizona, California, Iowa, North Dakota, South Dakota, and Texas to the
set of states listed in paragraph (m).
B. Appendix A
The appendix to the existing regulations identified bases, ranges,
and other installations that meet the definition of ``military
installation'' at Sec. 802.227, and, as applicable, related counties
or other geographic areas throughout the United States that are covered
real estate for the purposes of this part.
This proposed rule would include revisions to appendix A to include
the eight sites listed below.
<bullet> Air Force Plant 42, located in Palmdale, California
<bullet> Dyess Air Force Base, located in Abilene, Texas
<bullet> Ellsworth Air Force Base, located in Box Elder, South Dakota
<bullet> Grand Forks Air Force Base, located in Grand Forks, North
Dakota
<bullet> Iowa National Guard Joint Force Headquarters, located in Des
Moines, Iowa
<bullet> Lackland Air Force Base, located in San Antonio, Texas
<bullet> Laughlin Air Force Base, located in Del Rio, Texas
<bullet> Luke Air Force Base, located in Glendale, Arizona
III. Rulemaking Requirements
Executive Order 12866
This rule is not subject to the general requirements of Executive
Order 12866, as amended, which covers review of regulations by the
Office of Information
[[Page 29004]]
and Regulatory Affairs in the Office of Management and Budget (OMB),
because it relates to a foreign affairs function of the United States,
pursuant to section 3(d)(2) of that order. In addition, this rule is
not subject to review under section 6(b) of Executive Order 12866
pursuant to section 7(c) of the April 11, 2018 Memorandum of Agreement
between the Treasury Department and OMB, which states that CFIUS
regulations are not subject to OMB's standard centralized review
process under Executive Order 12866.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to prepare a regulatory flexibility
analysis, unless the agency certifies that the rule will not, once
implemented, have a significant economic impact on a substantial number
of small entities. The RFA applies whenever an agency is required to
publish a general notice of proposed rulemaking under section 553(b) of
the Administrative Procedure Act (APA) (5 U.S.C. 553), or any other
law. As set forth below, because regulations issued pursuant to the
DPA, such as these regulations, are not subject to the APA, or other
law requiring the publication of a general notice of proposed
rulemaking, the RFA does not apply.
This proposed rule makes amendments to the regulations implementing
section 721 of the DPA. Section 709(a) of the DPA provides that the
regulations issued under it are not subject to the rulemaking
requirements of the APA. Section 709(b)(1) instead provides that any
regulation issued under the DPA be published in the Federal Register
and opportunity for public comment be provided for not less than 30
days. Section 709(b)(3) of the DPA also provides that all comments
received during the public comment period be considered and the
publication of the final regulation contain written responses to such
comments. Consistent with the plain text of the DPA, legislative
history confirms that Congress intended that regulations under the DPA
be exempt from the notice and comment provisions of the APA and instead
provided that the agency include a statement that interested parties
were consulted in the formulation of the final regulation. See H.R.
Conf. Rep. No. 102-1028, at 42 (1992) and H.R. Rep. No. 102-208 pt. 1,
at 28 (1991). The limited public participation procedures described in
the DPA do not require a general notice of proposed rulemaking as set
forth in the RFA. Further, the mechanisms for publication and public
participation are sufficiently different to distinguish the DPA
procedures from a rule that requires a general notice of proposed
rulemaking. In providing the President with expanded authority to
suspend or prohibit certain real estate transactions involving foreign
persons if such a transaction would threaten to impair the national
security of the United States, Congress could not have contemplated
that regulations implementing such authority would be subject to RFA
analysis. For these reasons, the RFA does not apply to these
regulations. Regardless of whether the provisions of the RFA apply to
this rulemaking, for reasons noted in the preamble to the final rule
establishing part 802 (see 85 FR 3158), the Treasury Department
determined that the implementation of the provisions of section 721
relating to real estate transactions would most likely not affect a
substantial number of small entities. The amendments in this rule do
not change that analysis or determination. Notwithstanding this
certification, the Treasury Department invites comments on the
potential impacts of this rule on small entities.
List of Subjects in 31 CFR Part 802
Foreign investments in the United States, Federal buildings and
facilities, Government property, Investigations, Investments,
Investment companies, Land sales, National defense, Public lands, Real
property acquisition, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Treasury Department
proposes to amend part 802 to title 31 of the Code of Federal
Regulations to read as follows:
PART 802--REGULATIONS PERTAINING TO CERTAIN TRANSACTIONS BY FOREIGN
PERSONS INVOLVING REAL ESTATE IN THE UNITED STATES
0
1. The authority citation for part 802 continues to read as follows:
Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.
Sec. 802.227 [Amended]
0
2. Amend Sec. 802.227 paragraph (m) by replacing ``Oregon, Nevada,
Idaho, Wisconsin, Mississippi, North Carolina, or Florida;'' with
``Arizona, California, Florida, Idaho, Iowa, Mississippi, Nevada, North
Carolina, North Dakota, Oregon, South Dakota, Texas or Wisconsin;''.
0
3. Revise Part 2 of Appendix A to read as follows:
Appendix A to Part 802--List of Military Installations and Other U.S.
Government Sites
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Site name Location
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Part 2:
Aberdeen Proving Ground............. Aberdeen, MD.
Air Force Plant 42.................. Palmdale, CA.
Camp Shelby......................... Hattiesburg, MS.
Cape Canaveral Air Force Station.... Cape Canaveral, FL.
Dare County Range................... Manns Harbor, NC.
Dyess Air Force Base................ Abilene, TX.
Edwards Air Force Base.............. Edwards, CA.
Eglin Air Force Base................ Valparaiso, FL.
Ellsworth Air Force Base............ Box Elder, SD.
Fallon Range Complex................ Fallon, NV.
Fort Bragg.......................... Fayetteville, NC.
Fort Greely......................... Delta Junction, AK.
Fort Huachuca....................... Sierra Vista, AZ.
Fort Irwin.......................... San Bernardino County, CA.
Fort Polk........................... Leesville, LA.
Fort Wainwright..................... Fairbanks, AK.
Grand Forks Air Force Base.......... Grand Forks, ND.
Hardwood Range...................... Necehuenemedah, WI.
Hill Air Force Base................. Ogden, UT.
Iowa National Guard Joint Force Des Moines, IA.
Headquarters.
[[Page 29005]]
Lackland Air Force Base............. San Antonio, TX.
Laughlin Air Force Base............. Del Rio, TX.
Luke Air Force Base................. Glendale, AZ.
Mountain Home Air Force Base........ Mountain Home, ID.
Naval Air Station Meridian.......... Meridian, MS.
Naval Air Station Patuxent River.... Lexington Park, MD.
Naval Air Weapons Station China Lake Ridgecrest, CA.
Naval Base Kitsap--Keyport.......... Keyport, WA.
Naval Base Ventura County--Point Point Mugu, CA.
Mugu Operating Facility.
Naval Weapons Systems Training Boardman, OR.
Facility Boardman.
Nellis Air Force Base............... Las Vegas, NV.
Nevada Test and Training Range...... Tonopah, NV.
Pacific Missile Range Facility...... Kekaha, HI.
Patrick Air Force Base.............. Cocoa Beach, FL.
Tropic Regions Test Center.......... Wahiawa, HI.
Utah Test and Training Range........ Barro, UT.
Vandenberg Air Force Base........... Lompoc, CA.
West Desert Test Center............. Dugway, UT.
White Sands Missile Range........... White Sands Missile Range, NM.
Yuma Proving Ground................. Yuma, AZ.
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Dated: April 27, 2023.
Paul Rosen,
Assistant Secretary for Investment Security.
[FR Doc. 2023-09259 Filed 5-4-23; 8:45 am]
BILLING CODE 4810-25-P
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