[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 [www.gpo.gov]
[FR Doc No: 2023-09259]


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 Proposed Rules
                                                 Federal Register
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 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:
     Electronic Submission: Comments may be submitted 
electronically through the Federal government eRulemaking portal at 
https://www.regulations.gov. 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.
     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 https://www.regulations.gov. 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 https://www.regulations.gov 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: [email protected].

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.

 Air Force Plant 42, located in Palmdale, California
 Dyess Air Force Base, located in Abilene, Texas
 Ellsworth Air Force Base, located in Box Elder, South Dakota
 Grand Forks Air Force Base, located in Grand Forks, North 
Dakota
 Iowa National Guard Joint Force Headquarters, located in Des 
Moines, Iowa
 Lackland Air Force Base, located in San Antonio, Texas
 Laughlin Air Force Base, located in Del Rio, Texas
 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

------------------------------------------------------------------------
                Site name                            Location
------------------------------------------------------------------------
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.
------------------------------------------------------------------------


    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