[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2796-S2798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 692. Ms. ERNST submitted an amendment intended to be proposed by
her to the bill S. 2226, to authorize appropriations for fiscal year
2024 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
In title X, add at the end the following:
Subtitle H--Foreign Agricultural Restrictions to Maintain Local
Agriculture and National Defense
SEC. 1091. AGRICULTURAL FOREIGN INVESTMENT.
(a) Findings.--Congress finds that--
(1) agriculture is vital for the national security and
economic prosperity of the United States and is a key element
of United States national power;
(2) agriculture of the United States feeds the people of
the United States and the world, and has been a key
contributor to advancements in technology and medicine;
(3) strategic competitors of the United States have
hegemonic goals to dominate the global agriculture industry
and undermine the United States agriculture sector through
intellectual property theft of seeds and other patented
agriculture-related technologies;
(4) China in particular has increased agricultural
investments tenfold over the past decade and continues to
make investments in United States agriculture, agribusiness,
and animal processing industries, including by acquiring
ownership of farmland in the United States;
(5) the United States must prevent agricultural espionage
and theft of intellectual property conducted by China and
other foreign entities of concern (as defined in section 9 of
the Agricultural Foreign Investment Disclosure Act of 1978 (7
U.S.C. 3508));
(6) agricultural intellectual property theft may enable
global competitors to undercut United States producers in
international seed markets;
(7) the Federal Government does not fully exercise its
authorized oversight over investment transactions within the
agricultural industry, causing--
(A) United States farmland to be under foreign acquisition;
and
(B) the influence of foreign adversaries on agriculture in
the United States to be an unknown risk factor; and
(8) the Federal Government must enforce and modernize
existing laws to monitor and prevent malign actions of
foreign entities of concern (as defined in section 9 of the
Agricultural Foreign Investment Disclosure Act of 1978 (7
U.S.C. 3508)) on the farms and land of the United States.
(b) Civil Penalties.--Section 3 of the Agricultural Foreign
Investment Disclosure Act of 1978 (7 U.S.C. 3502) is
amended--
(1) by redesignating subsection (b) as subsection (d);
(2) in subsection (a), in the matter preceding paragraph
(1), by striking ``(a) If the'' and all that follows through
``Any such civil penalty'' in the third sentence and
inserting the following:
``(a) In General.--A person shall be subject to a civil
penalty imposed by the Secretary if the Secretary determines
that the person--
``(1) has failed to submit a report in accordance with the
provisions of section 2; or
``(2) has knowingly submitted a report under section 2
that--
``(A) does not contain all the information required to be
in such report; or
``(B) contains information that is misleading or false.
``(b) Availability of Funds From Civil Penalties.--A civil
penalty collected under subsection (a) shall be available to
the Secretary without appropriation and remain available
until expended for the purpose of enforcing this Act.
``(c) Civil Action.--Any civil penalty imposed by the
Secretary under subsection (a)''; and
(3) in subsection (d) (as so redesignated)--
(A) by striking the subsection designation and all that
follows through ``The amount'' and inserting the following:
``(d) Amount of Penalty.--The amount'';
(B) by striking ``of this section''; and
(C) by striking ``shall not exceed 25 percent'' and
inserting ``shall be not less than 5 percent, but not more
than 25 percent,''.
(c) Public Disclosure of Noncompliant Persons.--Section 3
of the Agricultural Foreign Investment Disclosure Act of 1978
(7 U.S.C. 3502) (as amended by subsection (b)) is amended by
adding at the end the following:
``(e) Public Disclosure of Noncompliant Persons.--The
Secretary shall publicly disclose the name of each person who
paid to the Secretary a civil penalty imposed under
subsection (a), including, if applicable, after the
completion of an appeal of a civil penalty.''.
(d) Publication of Reporting Requirements.--Section 3 of
the Agricultural Foreign Investment Disclosure Act of 1978 (7
U.S.C. 3502) (as amended by subsection (c)) is amended by
adding at the end the following:
``(f) Outreach.--Using existing resources and efforts to
the maximum extent practicable, the Secretary shall carry out
a nationwide outreach program directed primarily towards
landlords, owners, operators, persons, producers, and tenants
(as those terms are defined in section 718.2 of title 7, Code
of Federal Regulations (as in effect on the date of enactment
of the National Defense Authorization Act for Fiscal Year
2024)) of agricultural land and county property appraiser
offices, land appraisal companies, and real estate auction
companies to increase public awareness and provide education
regarding the reporting requirements under this section.''.
(e) Due Diligence Requirements.--The Agricultural Foreign
Investment Disclosure Act of 1978 is amended by inserting
after section 4 (7 U.S.C. 3503) the following:
``SEC. 5. DUE DILIGENCE REQUIREMENTS.
``Any entity (including a buyer, seller, real estate agent,
broker, and title company) involved in the purchase or
transfer of agricultural land in the United States shall--
``(1) conduct due diligence relating to the agriculture
land being purchased or transferred; and
``(2) certify to the Secretary that, to the best of the
knowledge and belief of the entity, the entity is in
compliance with all applicable provisions of this Act.''.
SEC. 1092. REPORT ON AGRICULTURAL LAND PURCHASING ACTIVITIES
IN THE UNITED STATES BY COUNTRIES DESIGNATED AS
STATE SPONSORS OF TERRORISM AND CERTAIN OTHER
COUNTRIES.
(a) Definitions.--In this section:
(1) Agricultural land.--The term ``agricultural land'' has
the meaning given the term in section 9 of the Agricultural
Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3508).
(2) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Committee on Agriculture, Nutrition, and Forestry
of the Senate;
(B) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(C) the Committee on Intelligence of the Senate;
(D) the Committee on Homeland Security of the House of
Representatives;
(E) the Committee on Agriculture of the House of
Representatives; and
(F) the Permanent Select Committee on Intelligence of the
House of Representatives.
(3) Covered foreign country.--The term ``covered foreign
country'' means--
(A) the People's Republic of China;
(B) the Russian Federation;
(C) a state sponsor of terrorism; and
(D) any other country identified by the Secretary of
Homeland Security or the Secretary of Agriculture.
(4) Covered foreign person.--The term ``covered foreign
person'' means a foreign person (as defined in section 9 of
the Agricultural Foreign Investment Disclosure Act of 1978 (7
U.S.C. 3508)) that is a citizen of, or headquartered in, as
applicable, a covered foreign country.
(5) State.--The term ``State'' has the meaning given the
term in section 9 of the Agricultural Foreign Investment
Disclosure Act of 1978 (7 U.S.C. 3508).
(6) State sponsor of terrorism.--The term ``state sponsor
of terrorism'' means a country the government of which the
Secretary of State has determined has repeatedly provided
support for acts of international terrorism, for purposes
of--
(A) section 1754(c)(1)(A)(i) of the Export Control Reform
Act of 2018 (50 U.S.C. 4813(c)(1)(A)(i));
(B) section 620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371);
(C) section 40(d) of the Arms Export Control Act (22 U.S.C.
2780(d)); or
(D) any other provision of law.
(b) Report.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, and annually thereafter, the Secretary
of Agriculture, with support from the Secretary of Homeland
Security and the head of any other appropriate Federal
agency, shall submit to the appropriate committees of
Congress a report describing the national security risks of
the purchase and management of agricultural land by covered
foreign persons.
(2) Contents.--A report submitted under paragraph (1) shall
include the following with respect to the year covered by the
report:
(A) A description of--
(i) the number of acres of agricultural land owned or
managed by covered foreign persons, organized by State; and
(ii) for each State, the percentage of land owned or
managed by covered foreign persons compared to the total
acreage of the State.
(B) An analysis of the possible threat to food security,
food safety, biosecurity, or environmental protection due to
the ownership of agricultural land by each covered foreign
country through covered foreign persons.
[[Page S2797]]
(C) An analysis of the annual and total cost of support for
agricultural land owned by covered foreign persons through
farm programs administered by the Farm Service Agency.
(D) An analysis of the use of agricultural land for
industrial espionage or intellectual property transfer by
covered foreign persons.
(E) An analysis of the potential use by covered foreign
persons of agricultural land in close proximity to
manufacturing facilities, water sources, and other critical
infrastructure to monitor, interrupt, or disrupt activities
critical to the national and economic security of the United
States.
(F) An analysis of other threats to the agricultural
industry or national security of the United States due to the
ownership of agricultural land by covered foreign persons.
(3) Unclassified form.--A report submitted under this
subsection shall--
(A) be submitted in unclassified form, but may include a
classified annex; and
(B) be consistent with the protection of intelligence
sources and methods.
SEC. 1093. INVESTIGATIVE ACTIONS.
(a) Investigative Actions.--Section 4 of the Agricultural
Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3503) is
amended to read as follows:
``SEC. 4. INVESTIGATIVE ACTIONS.
``(a) In General.--The Secretary shall appoint an employee
in the Senior Executive Service (as described in section 3131
of title 5, United States Code) of the Department of
Agriculture to serve as Chief of Operations of Investigative
Actions (referred to in this section as the `Chief of
Operations'), who shall hire, appoint, and maintain
additional employees to monitor compliance with the
provisions of this Act.
``(b) Chief of Operations.--The Chief of Operations may
serve in such position simultaneously with a concurrent
position within the Department of Agriculture.
``(c) Security.--The Secretary shall--
``(1) provide classified storage, meeting, and other
spaces, as necessary, for personnel; and
``(2) assist personnel in obtaining security clearances.
``(d) Duties.--The Chief of Operations shall--
``(1) monitor compliance with this Act;
``(2) refer noncompliance with this Act to the Secretary,
the Farm Service Agency, and any other appropriate authority;
``(3) conduct investigations, in coordination with the
Department of Justice, the Federal Bureau of Investigation,
the Department of Homeland Security, the Department of the
Treasury, the National Security Council, and State and local
law enforcement agencies, on malign efforts--
``(A) to steal agricultural knowledge and technology; and
``(B) to disrupt the United States agricultural base;
``(4) conduct an annual audit of the database developed
under section 1095(b) of the National Defense Authorization
Act for Fiscal Year 2024;
``(5) seek to enter into memoranda of agreement and
memoranda of understanding with the Federal agencies
described in paragraph (3)--
``(A) to ensure compliance with this Act; and
``(B) to prevent the malign efforts described in that
paragraph;
``(6) refer to the Committee on Foreign Investment in the
United States transactions that--
``(A) raise potential national security concerns; and
``(B) result in agricultural land acquisition by a foreign
person that is a citizen of, or headquartered in, as
applicable, a foreign entity of concern; and
``(7) publish annual reports that summarize the information
contained in every report received by the Secretary under
section 2 during the period covered by the report.
``(e) Administration.--The Chief of Operations shall report
to--
``(1) the Secretary; or
``(2) if delegated by the Secretary, to--
``(A) the Administrator of the Farm Service Agency; or
``(B) the Director of the Department of Agriculture Office
of Homeland Security.''.
(b) Definition of Foreign Entity of Concern.--Section 9 of
the Agricultural Foreign Investment Disclosure Act of 1978 (7
U.S.C. 3508) is amended--
(1) in the matter preceding paragraph (1), by striking
``For purposes of this Act--'' and inserting ``In this
Act:'';
(2) in each of paragraphs (1) through (6)--
(A) by striking ``the term'' and inserting ``The term'';
and
(B) by inserting a paragraph heading, the text of which
comprises the term defined in that paragraph;
(3) by redesignating paragraphs (2) through (6) as
paragraphs (3), (4), (6), (7), and (8), respectively;
(4) by inserting after paragraph (1) the following:
``(2) Foreign entity of concern.--The term `foreign entity
of concern' has the meaning given the term in section 9901 of
the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651).'';
and
(5) by inserting after paragraph (4) (as so redesignated)
the following:
``(5) Malign effort.--The term `malign effort' means any
hostile effort undertaken by, at the direction of, on behalf
of, or with the substantial support of the government of a
foreign entity of concern.''.
(c) Reports.--The Agricultural Foreign Investment
Disclosure Act of 1978 (7 U.S.C. 3501 et seq.) is amended by
adding at the end the following:
``SEC. 11. REPORTS.
``(a) Initial Report.--Not later than 180 days after the
date of enactment of this section, the Secretary shall submit
to Congress a report that describes the progress of the
Secretary in implementing the amendments made by subtitle H
of title X of the National Defense Authorization Act for
Fiscal Year 2024.
``(b) Report on Tracking Covered Transactions.--Not later
than 180 days after the date of enactment of this section,
the Secretary shall submit to Congress a report on the
feasibility of--
``(1) establishing a mechanism for quantifying the threats
posed by foreign entities of concern to United States food
security, biosecurity, food safety, environmental protection,
and national defense; and
``(2) building, and submitting to the Committee on Foreign
Investment in the United States for further review, a
rigorous discovery and review process to review transactions
described in section 721(a)(4)(B)(vi) of the Defense
Production Act of 1950 (50 U.S.C. 4565(a)(4)(B)(vi)).
``(c) Yearly Report.--Not later than 1 year after the date
of enactment of this section, and annually thereafter for the
following 10 years, the Secretary shall submit to Congress a
report on the activities of the Secretary pursuant to this
Act during the year covered by the report.''.
SEC. 1094. AUTHORITY OF COMMITTEE ON FOREIGN INVESTMENT IN
THE UNITED STATES TO REVIEW CERTAIN REAL ESTATE
PURCHASES BY FOREIGN ENTITIES OF CONCERN.
(a) In General.--Section 721(a)(4) of the Defense
Production Act of 1950 (50 U.S.C. 4565(a)(4)) is amended--
(1) in subparagraph (A)--
(A) in clause (i), by striking ``; and'' and inserting a
semicolon;
(B) in clause (ii), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(iii) any transaction described in subparagraph (B)(vi)
proposed or pending on or after the date of enactment of this
clause.''; and
(2) in subparagraph (B), by adding at the end the
following:
``(vi) Subject to subparagraph (C), the purchase or lease
by, or a concession to, a foreign entity of concern of
private or public real estate in the United States if--
``(I)(aa) the value of the purchase, lease, or concession--
``(AA) exceeds $5,000,000; or
``(BB) in combination with the value of other such
purchases or leases by, or concessions to, the same entity
during the preceding 3 years, exceeds $5,000,000; or
``(bb) the real estate--
``(AA) exceeds 320 acres; or
``(BB) in combination with other private or public real
estate in the United States purchased or leased by, or for
which a concession is provided to, the same entity during the
preceding 3 years, exceeds 320 acres; and
``(II) the real estate is primarily used for--
``(aa) agriculture, including raising of livestock and
forestry;
``(bb) extraction of fossil fuels, natural gas, purchases
or leases of renewable energy sources; or
``(cc) extraction of critical precursor materials for
biological technology industries, information technology
components, or national defense technologies.''.
(b) Foreign Entities of Concern.--Section 721(a) of the
Defense Production Act of 1950 (50 U.S.C. 4565(a)) is
amended--
(1) by redesignating paragraphs (7) through (13) as
paragraphs (8) through (14), respectively; and
(2) by inserting after paragraph (6) the following:
``(7) Foreign entity of concern.--The term `foreign entity
of concern' has the meaning given that term in section 9901
of the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651).''.
(c) Factors To Be Considered.--Section 721(f) of the
Defense Production Act of 1950 (50 U.S.C. 4565(f)) is
amended--
(1) by redesignating paragraphs (8) through (11) as
paragraphs (9) through (12), respectively; and
(2) by inserting after paragraph (7) the following:
``(8) the potential follow-on national security effects of
the risks posed by the proposed or pending transaction to
United States food security, food safety, biosecurity,
environmental protection, or national defense;''.
(d) Inclusion of Secretary of Agriculture and the
Commissioner of Food And Drugs on Committee On Foreign
Investment in the United States.--Section 721(k)(2) of the
Defense Production Act of 1950 (50 U.S.C. 4565(k)(2)) is
amended--
(1) by redesignating subparagraphs (H), (I), and (J) as
subparagraphs (J), (K), and (L), respectively; and
(2) by inserting after subparagraph (G) the following:
``(H) The Secretary of Agriculture.
``(I) The Commissioner of Food and Drugs.''.
[[Page S2798]]
(e) Annual Report.--Section 721(m) of the Defense
Production Act of 1950 (50 U.S.C. 4565(m)) is amended--
(1) by redesignating paragraph (4) as paragraph (5); and
(2) by inserting after paragraph (3) the following:
``(4) List of real estate owned by foreign entities of
concern.--The President and such agencies as the President
shall designate shall include in the annual report submitted
under paragraph (1) a list of all real estate in the United
States owned by a foreign entity of concern or a person
closely associated with such an entity.''.
(f) Report Required.--Not later than 180 days after the
date of enactment of this Act, the Secretary of the Treasury,
in coordination with Secretary of State and the Secretary of
Homeland Security, shall submit to Congress a report that
includes--
(1) an assessment of the feasibility of requiring
retroactive divestment of real estate owned by foreign
entities of concern (as defined in section 721(a) of the
Defense Production Act of 1950, as amended by this section);
and
(2) a description of the process used by the Committee on
Foreign Investment in the United States to review the
national security implications of any connections between--
(A) foreign investment in the United States made by the
Government of the People's Republic of China or entities
controlled by or acting on behalf of that Government; and
(B) the Chinese Communist Party.
(g) Effective Date.--The amendments made by this section
take effect on the date of the enactment of this Act and
apply with respect to any covered transaction the review or
investigation of which is initiated under section 721 of the
Defense Production Act of 1950 on or after such date of
enactment.
SEC. 1095. DIGITIZATION AND CONSOLIDATION OF FOREIGN LAND
OWNERSHIP DATA.
(a) Definitions.--In this section:
(1) Agricultural land.--The term ``agricultural land'' has
the meaning given the term in section 781.2 of title 7, Code
of Federal Regulations (as in effect on the date of enactment
of this Act).
(2) Appropriate committees of congress.--In this section,
the term ``appropriate committees of Congress'' has the
meaning given the term in section 1092(a).
(3) Database.--The term ``database'' means the database
developed under subsection (b).
(4) Foreign person.--The term ``foreign person'' has the
meaning given the term in section 9 of the Agricultural
Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3508).
(5) Secretaries.--The term ``Secretaries'' means--
(A) the Secretary of Agriculture; and
(B) the Secretary of Homeland Security.
(b) Database.--Subject to the availability of
appropriations, not later than 3 years after the date of
enactment of this Act, the Secretaries, acting jointly, shall
develop a database of agricultural land owned by foreign
persons, using data that are--
(1) collected--
(A) pursuant to the Agricultural Foreign Investment
Disclosure Act of 1978 (7 U.S.C. 3501 et seq.); and
(B) from FSA-153 forms submitted to the Farm Service
Agency; and
(2) publicly available.
(c) Contents.--Each entry in the database for each
registration or updated registration of agricultural land
owned by a foreign person shall include information in the
applicable FSA-153 form.
(d) Audit.--Not later than 180 days after the database is
made publicly available, and annually thereafter, the Chief
of Operations for Investigative Actions appointed under
section 4 of the Agricultural Foreign Investment Disclosure
Act of 1978 shall--
(1) conduct an audit of the database; and
(2) submit to the appropriate committees of Congress a
report--
(A) evaluating the accuracy of the database; and
(B) describing recommendations for improving compliance
with the reporting required under the Agricultural Foreign
Investment Disclosure Act of 1978 (7 U.S.C. 3501 et seq.).
SEC. 1096. PROHIBITION OF PARTICIPATION IN FARM SERVICE
AGENCY PROGRAMS BY FOREIGN PERSONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term
``appropriate committees of Congress'' has the meaning given
the term in section 1092(a).
(2) Foreign person.--The term ``foreign person'' has the
meaning given the term in section 9 of the Agricultural
Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3508).
(3) Operator.--The term ``operator'' has the meaning given
the term in section 718.2 of title 7, Code of Federal
Regulations (as in effect on the date of enactment of this
Act).
(4) Owner.--The term ``owner'' has the meaning given the
term in section 718.2 of title 7, Code of Federal Regulations
(as in effect on the date of enactment of this Act).
(5) Participant.--The term ``participant'' has the meaning
given the term in section 718.2 of title 7, Code of Federal
Regulations (as in effect on the date of enactment of this
Act).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(b) Limitation for Foreign-owned or Operated Land.--No
operator or owner who is a foreign person may be a
participant.
(c) Compliance.--
(1) In general.--The Secretary may take such actions as the
Secretary considers necessary to monitor compliance with
subsection (b).
(2) Ownership certification.--The Secretary shall require
any owner or operator applying to be a participant to certify
in the application that the owner or operator is not a
foreign person.
(3) Civil penalty.--
(A) In general.--A foreign person shall be subject to a
civil penalty imposed by the Secretary if the Secretary
determines that the foreign person--
(i) has received benefits prohibited under subsection (b);
or
(ii) has knowingly submitted a request for those benefits
that contains information that is misleading or false.
(B) Civil action.--A civil penalty imposed by the Secretary
under subparagraph (A) shall be recoverable in a civil action
brought by the Attorney General in an appropriate district
court of the United States.
(C) Amount.--The amount of a civil penalty imposed by the
Secretary under subparagraph (A)--
(i) shall be such amount as the Secretary determines to be
appropriate to carry out the purposes of this section; but
(ii) shall not exceed 125 percent of the monetary benefits
provided to the foreign person in participating in the 1 or
more programs of the Farm Service Agency in which
participation is prohibited under subsection (b).
(D) Use of civil penalties.--Penalties collected under this
paragraph shall be available to the Secretary, without
further appropriation and until expended, for the purpose of
enforcing this section.
(4) Use of information.--For the purpose of monitoring
compliance under this subsection, the Secretary shall use
information--
(A) collected by the Secretary under the Agricultural
Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3501 et
seq.); and
(B) from the FSA-153 form submitted to the Farm Service
Agency.
(d) Report.--The Secretary shall submit to the appropriate
committees of Congress, on an annual basis, a report
containing the following information:
(1) A description of violations of subsection (b) during
the year covered by the report.
(2) An itemized list of savings for each program
administered by the Farm Service Agency during the year
covered by the report as a result of subsection (b).
(3) A description of compliance actions taken by the
Secretary under subsection (c) during the year covered by the
report.
(4) An itemized list of civil penalties imposed on foreign
persons under subsection (c)(3) during the year covered by
the report.
(5) Such other information on enforcement under this
section, compliance with this section, and the benefits of
this section as the Secretary determines to be necessary.
SEC. 1097. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
subtitle and the amendments made by this subtitle--
(1) $35,000,000 for fiscal year 2024, to remain available
until expended, for secure workspace buildout under the
amendments made by section 1093 and database system
development under section 1095; and
(2) $9,000,000 for each of fiscal years 2024 through 2028
for all other activities.
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