Notice2023-27683
Request for Information on Agricultural Foreign Investment Disclosure Act (AFIDA) FSA-153 Form Modernization and Information Collection Request
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Published
December 18, 2023
Issuing agencies
Agriculture DepartmentFarm Service Agency
Abstract
The Farm Service Agency (FSA) is requesting information on proposed revisions to the Agricultural Foreign Investment Disclosure Act Report (FSA-153 form). The FSA-153 requires updating. Specifically, the FSA-153 form needs clarification and updating to ensure that foreign owners (or long-term lessees) who are required to file the FSA- 153 form have clear instructions and that USDA is collecting the most precise and meaningful data, so that the report to Congress is as accurate and insightful as possible. Foreign owners are investors who buy, sell, or hold a direct or indirect interest in U.S. agricultural land (or who hold long-term leases on agricultural land) and must report their holdings and transactions to USDA on the FSA-153 form. USDA uses the information on the submitted forms to generate the report that it submits to Congress. FSA is moving towards modernizing the collection of information process, clarifying and modernizing the FSA- 153 form, and if funding becomes available, creating an electronic submission system that will allow foreign owners to report by filing electronically. In addition, this document requests public input for our plan to revise not only the information request, but ultimately, the regulation (which will likely result in further modifications at a later date to the FSA-153 form).
Full Text
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<title>Federal Register, Volume 88 Issue 241 (Monday, December 18, 2023)</title>
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[Federal Register Volume 88, Number 241 (Monday, December 18, 2023)]
[Notices]
[Pages 87385-87393]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27683]
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DEPARTMENT OF AGRICULTURE
Farm Service Agency
[Docket ID: FSA-2023-0017]
Request for Information on Agricultural Foreign Investment
Disclosure Act (AFIDA) FSA-153 Form Modernization and Information
Collection Request
ACTION: Notice; and request for comment.
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AGENCY: Farm Service Agency and Farm Production and Conservation
Business Center, Department of Agriculture (USDA).
SUMMARY: The Farm Service Agency (FSA) is requesting information on
proposed revisions to the Agricultural Foreign Investment Disclosure
Act Report (FSA-153 form). The FSA-153 requires updating. Specifically,
the FSA-153 form needs clarification and updating to ensure that
foreign owners (or long-term lessees) who are required to file the FSA-
153 form have clear instructions and that USDA is collecting the most
precise and meaningful data, so that the report to Congress is as
accurate and insightful as possible. Foreign owners are investors who
buy, sell, or hold a direct or indirect interest in U.S. agricultural
land (or who hold long-term leases on agricultural land) and must
report their holdings and transactions to USDA on the FSA-153 form.
USDA uses the information on the submitted forms to generate the report
that it submits to Congress. FSA is moving towards modernizing the
collection of information process, clarifying and modernizing the FSA-
153 form, and if funding becomes available, creating an electronic
submission system that will allow foreign owners to report by filing
electronically. In addition, this document requests public input for
our plan to revise not only the information request, but ultimately,
the regulation (which will likely result in further modifications at a
later date to the FSA-153 form).
DATES: We will consider comments or information that we receive by
February 16, 2024.
ADDRESSES: We invite you to send comments in response to this notice.
You may submit comments, identified by Docket ID: FSA-2023-0017 in the
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Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
search for FSA-2023-0017. Follow the instructions for submitting
comments.
All comments will be posted without change and will be publicly
available on <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Mary Estep; telephone (202) 720-3217;
or email <a href="/cdn-cgi/l/email-protection#573a36252e793224233227172224333679303821"><span class="__cf_email__" data-cfemail="412c2033386f243235243101343225206f262e37">[email protected]</span></a>. Individuals who require alternative means
for communication should contact the USDA TARGET Center at (202) 720-
2600 (voice and text telephone (TTY)) or dial 711 for
Telecommunications Relay Service (both voice and text telephone users
can initiate this call from any telephone).
SUPPLEMENTARY INFORMATION:
Background
The Agricultural Foreign Investment Disclosure Act of 1978 (Pub. L.
95-460) requires ``foreign persons'' who hold, acquire, or dispose of
an interest in U.S. agricultural land to report transactions and
holdings to USDA through the Agricultural Foreign Investment Disclosure
Act Report (FSA-153 form) within 90 days of the transaction. In this
document, we are using the term ``foreign owners'' to refer to the
people, companies, governments, and others who are required to report
their transactions and holdings to USDA. ``Foreign owners'' is an
umbrella term that also includes long-term leaseholders (typically in
the wind and solar industries).
In recent years, there has been great interest in the annual AFIDA
report to Congress. Further, section 773 of title VII of the
Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2023 (7 U.S.C. 3501 note; Division
A of the Consolidated Appropriations Act, 2023; Pub. L. 117-328)
requires the Secretary to establish a streamlined process for
electronic submission and retention of disclosures made under AFIDA, as
well as to create an internet database that contains disaggregated data
from each disclosure submitted to USDA. In order to fulfill this
mandate, FSA must collect the data that best captures all of the
requirements of AFIDA with minimal burden on foreign owners. Until
additional funding is available, or re-prioritization of funding
occurs, FSA will continue to collect information through the paper-
based FSA-153 form.
Given that the FSA-153 form has not been updated for years, an
internal working group--composed of AFIDA headquarters specialists,
information technology specialists, FSA field staff, and other USDA
employees--met in the spring and summer of 2023 to discuss revisions to
the form to gather more precise data to prepare for meeting the Section
773 mandate and to clarify and modernize the form. This document
requests public input for our plan to revise the information collection
request as part of our information collection request, which will be
submitted to OMB to renew and revise their approval for OMB control
number 0560-0097.
AFIDA data collection has operated in much the same way for the
past 40 years. FSA administers AFIDA for the Secretary. Foreign owners
can work through the FSA county office to fill out the form or, for
more complex cases, directly with the AFIDA headquarters staff in the
FPAC Business Center's Economic and Policy Analysis Division. Forms are
typically filled out manually and mailed in hard copy to headquarters
staff (whether originating in the FSA county office or received
directly, in the case of complex situations, from foreign owners or
their representatives). The AFIDA headquarters staff check all incoming
reports for accuracy and completeness and work with the foreign owner
(or FSA county office) if additional information is needed. The data
from each FSA-153 form is then manually hand-entered in an in-house
data system designed to produce the annual report to Congress.
Definitions
A foreign person is, generally, an individual who is not a U.S.
citizen or permanent resident, or an entity that is:
<bullet> a foreign government,
<bullet> an entity formed under the laws of a foreign government,
or
<bullet> an entity formed under a U.S. law in which a foreign
person has a reportable direct or indirect interest.
A reportable interest is an interest held by a foreign person in
agricultural land as:
<bullet> a direct landowner (the title holder),
<bullet> a direct leaseholder if the lease is for 10 years or more,
<bullet> an indirect landowner or leaseholder.
A reportable indirect interest is any interest held by a foreign
person in any entity that has an interest in agricultural land as an
owner or leaseholder if the lease is for 10 years or more (excluding
contingent future interests). To be reportable, the interest held in
the entity by the foreign person must be:
(1) 10 percent or more by a foreign person or group of foreign
persons acting in concert, or
(2) 50 percent by a group of foreign persons not acting in concert.
Form FSA-153, tracks ownership to the third ownership tier.
For AFIDA purposes, agricultural land is land used for
``agricultural purposes'' that is:
<bullet> more than 10 acres in size in the aggregate; or
<bullet> 10 acres or less in the aggregate producing gross annual
receipts of more than $1,000 from the sale of farm, ranch, or timber
products in total.
``Agricultural purposes'' is defined as land that during the
current year or any 1 of the preceding 5 years was used for:
<bullet> farming, ranching, pasture, orchards, vineyards, timber
production, and so on; or
<bullet> forestry production exceeding 10 acres in size in which 10
percent is stocked by trees of any size, including land that formerly
had such tree cover and will be naturally or artificially regenerated.
It does not matter whether the foreign person ever intends to cut and
sell the trees.
These definitions apply even if the land has been planned and
plotted or re-zoned for nonagricultural purposes.
Agricultural land is categorized as cropland, forestland,
pastureland, other agriculture, and non-agricultural land (homesteads,
farm roads).
Reporting
Foreign owners (or often, their U.S. attorney representatives)
meeting the requirements above report their information on the existing
FSA-153 form found at: <a href="https://forms.sc.egov.usda.gov/efcommon/eFileServices/eForms/FSA153.PDF">https://forms.sc.egov.usda.gov/efcommon/eFileServices/eForms/FSA153.PDF</a>. In addition, the foreign filer must
file a separate FSA-153 form when:
<bullet> the agricultural land is acquired or disposed of on
different dates;
<bullet> the agricultural land is in multiple counties; or
<bullet> partial vs. whole ownership interests are different for
the different parcels acquired at the same time and in the same county.
In addition to the FSA-153 form itself, foreign owners must provide
the legal description of the parcels that they acquired (or disposed
of) and, if applicable, the tiers of ownership (to the third tier).
In addition to acquisitions and dispositions, reporting of an
amended FSA-153 is triggered when the land use changes, the tiers of
ownership change, or the name of the foreign person changes.
The annual report to Congress is available on: <a href="https://www.fsa.usda.gov/programs-and-services/economic-and-policy-analysis/afida/annual-reports/index">https://www.fsa.usda.gov/programs-and-services/economic-and-policy-analysis/afida/annual-reports/index</a>. The annual report contains information on
the top-five countries
[[Page 87387]]
holding different forms of agricultural land, the concentration of
holdings geographically, and other information.
Geographic Context for the Location of the Land
AFIDA information has no direct linkages to FSA's Farm Records or
other FSA systems. Parcel and foreign owner numbers are assigned by
AFIDA headquarters staff; these numbers have no relevance for other FSA
programs. The current FSA-153 form requires that the foreign owners
provide the legal description or FSA tract number. Very few foreign
owners provide an FSA tract or farm number and only provide a hard copy
of the legal description.
Also, USDA is increasingly questioned by agencies within the
federal government, and others, about purchases by certain entities and
the geographic location of their holdings. We can provide the legal
description--typically a ``Platt type'' map--that has no context
allowing immediate geo-spatial interpretation. Accordingly, we are
asking foreign owners to provide their legal description for each
parcel and to also identify one or more of the following:
<bullet> The longitude and latitude for each parcel;
<bullet> The property tax ID number assigned by the county; and
<bullet> The FSA tract number and the FSA farm number.
We do not have the authority to require that foreign owners provide
this information or that they obtain an FSA tract and farm number.
However, we are requesting that they voluntarily provide at least one
of these additional data points.
Request for Information
We are requesting public input for the following questions:
(1) Is the request for additional information an undue burden on
foreign owners or their representatives? If so, why?
(2) Are there additional options that should be added to the list
above? If so, what are those options?
Long-Term Leaseholds
Currently, there are no specific questions about leases on the
form. As a result, foreign owners are writing in ``lease'' in box 5.f
on the FSA-153 form. Long-term leases are a significant category of
reports, and Congress and others have a strong interest in capturing
leasing data. There are several changes proposed on the FSA-153 form to
capture data on the types of leases and the value of the lease.
Request for Information
We are requesting public input for the following questions:
(1) Are long-term leasehold filings--particularly those in the wind
turbine and solar panel industries--``different enough'' from land
ownership purchase or sale filings that a separate version of the FSA-
153 form should be created? Should a different ``logic path'' of
questions be developed for long-term leasehold filings?
(2) Many foreign wind energy companies have long-term leaseholds on
U.S. agricultural land farmed by U.S. producers that trigger the AFIDA
reporting requirement. Currently, the entire acreage of the parcel is
captured; this is because the number of wind turbines that will be
established on the land (if any) is often an unknown at the time of
AFIDA reporting. In addition, the existence of the leasehold generally
precludes other energy company involvement on the acreage. Does this
approach overstate foreign energy company activity on U.S. agricultural
land? If so, how should the acreage associated with these leaseholds be
captured?
(3) How should solar panels or photovoltaics--which are situated
above the agricultural land--be treated for AFIDA reporting given that
AFIDA uses an acreage basis for reporting?
(4) Some foreign owners are providing a very low estimate of the
value of the lease (as the flat payment is low) on the FSA-153 form
while others are providing the estimated value of the entire parcel.
How should ``interest in the value of the agricultural land'' be
defined for leases?
Impacts on Farms and Rural Communities
AFIDA requires USDA to determine the impacts of foreign ownership,
which the Economic Research Service provided in the report to Congress
posted in December 2022 (containing data as of December 31, 2021). In
order to assess impacts, and answer questions from Congress and the
media (for example, are farmers being kicked off their land?),
questions 9 through 12 on the existing FSA-153 form are being
considered to be replaced by a new set of proposed questions 11 through
13.
Request for Information
We are requesting public input for the following questions:
(1) Do the revised questions capture the scenarios needed to
ascertain the impacts of foreign investment in U.S. agricultural land?
If not, what questions should be added, or should the proposed
questions be modified?
(2) Do these questions put an undue burden on the foreign owner or
their representative?
(3) Are there situations where responding to the questions as
written may result in unclear inferences--for example, if there are
foreigners who are both farming land they have purchased within a
county, and renting? How common are such situations?
FSA has several general questions associated with the FSA-153 form,
which are listed below:
(1) By regulation, reporting by foreign owners is required to the
third tier of ownership. The form does not capture information on the
ultimate owning country or countries. Should this information be
captured?
(2) Should foreign owners be required to report beyond the third
tier of ownership? If so, why?
(3) What ownership level should bear the reporting obligation?
(4) Should the FSA Farm Records and AFIDA definitions of ``tract''
be aligned? If so, why?
(5) Should parcels that are part of the same purchase or lease but
are to be used differently--say, for agricultural vs. non-agricultural
purposes--be treated differently by AFIDA? If so, how should the FSA-
153 form be modified? Please provide examples and explain why.
(6) The AFIDA regulation currently provides a list of exemptions to
reporting. Should filing be required in situations of contingent future
interests? If so, what kind and what types should be exempted, if any?
Should reporting be required under any circumstances for easements?
Please explain.
(7) Should foreign owners be required to submit an amended FSA-153
form when land use changes within the agricultural category (say, if
acres move from pastureland to cropland relative to the original
reporting)?
Information Collection Request
FSA is requesting comments from all interested individuals and
organizations on a revision to the currently approved information
collection request associated with the Agricultural Foreign Investment
Disclosure Act (AFIDA) of 1978. FSA is proposing a modified FSA-153
form and an appendix A showing the tiers of ownership. The modified
FSA-153 and Appendix A are available at the end of this notice; you may
provide comment in <a href="http://www.regulations.gov">www.regulations.gov</a>. You can also provide comments
on all aspects of the AFIDA information collection request and the
collected information as described in this notice. We have increased
the burden estimate because
[[Page 87388]]
we expanded the form and we estimated the number of times changes have
been submitted over several years.
Description of Information Collection
Title: Agricultural Foreign Investment Disclosure Act Report.
OMB Control Number: 0560-0097.
Expiration Date of Approval: August 31, 2025.
Type of Request: Revision.
For the following estimated total annual burden on respondents, the
formula used to calculate the total burden hour is the estimated
average time per response hours multiplied by the estimated total
annual responses.
Estimate of Respondent Burden: Public reporting burden for the
information collection is estimated to average 2 hours per response.
Respondents: Individuals or households, businesses or other for
profit farms.
Estimated Annual Number of Respondents: 7,775.
Estimated Number of Reponses per Respondent: 5.
Estimated Total Annual Responses: 38,875.
Estimated Total Annual Burden on Respondents: 77,750 hours.
We are requesting comments on all aspects of this information
collection to help us to:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the FSA, including whether
the information will have practical utility;
(2) Evaluate the accuracy of the FSA's estimate of burden including
the validity of the methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to
be collected;
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
All comments received in response to this notice, including names
and addresses when provided, will be a matter of public record.
Comments will be summarized and included in the submission for Office
of Management and Budget approval.
Request for Meeting
In addition to providing input in your written comment, if you
would like to meet to discuss the proposed changes, please include that
request in your comment, also. If there is interest, we will schedule a
meeting.
USDA Non-Discrimination Policy
In accordance with Federal civil rights law and USDA civil rights
regulations and policies, USDA, its Agencies, offices, and employees,
and institutions participating in or administering USDA programs are
prohibited from discriminating based on race, color, national origin,
religion, sex, gender identity (including gender expression), sexual
orientation, disability, age, marital status, family or parental
status, income derived from a public assistance program, political
beliefs, or reprisal or retaliation for prior civil rights activity, in
any program or activity conducted or funded by USDA (not all bases
apply to all programs). Remedies and complaint filing deadlines vary by
program or incident.
Individuals who require alternative means of communication for
program information (for example, braille, large print, audiotape,
American Sign Language, etc.) should contact the responsible Agency or
the USDA TARGET Center at (202) 720-2600 (voice and text telephone
(TTY)) or dial 711 for Telecommunications Relay Service (both voice and
text telephone users can initiate this call from any telephone).
Additionally, program information may be made available in languages
other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at <a href="https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint">https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint</a> and
at any USDA office or write a letter addressed to USDA and provide in
the letter all the information requested in the form. To request a copy
of the complaint form, call (866) 632-9992. Submit your completed form
or letter to USDA by: (1) mail to: U.S. Department of Agriculture,
Office of the Assistant Secretary for Civil Rights, 1400 Independence
Avenue SW, Washington, DC 20250--9410; (2) fax: (202) 690-7442; or (3)
email: <a href="/cdn-cgi/l/email-protection#c4b4b6aba3b6a5a9eaadaab0a5afa184b1b7a0a5eaa3abb2"><span class="__cf_email__" data-cfemail="5f2f2d30382d3e327136312b3e343a1f2a2c3b3e71383029">[email protected]</span></a>.
USDA is an equal opportunity provider, employer, and lender.
BILLING CODE 3410-E2-P
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Steven Peterson,
Acting Administrator, Farm Service Agency.
[FR Doc. 2023-27683 Filed 12-15-23; 8:45 am]
BILLING CODE 3410-E2-C
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