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###### Department of Agriculture

###### Farm Service Agency

          - [Docket ID: FSA-2023-0017]

# ACTION:

Notice; and request for comment.

# 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                               ( print page 87386)                            Federal eRulemaking Portal: Go to                         *https://www.regulations.gov*                         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                         *www.regulations.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        Mary Estep; telephone (202) 720-3217; or email                         *mary.estep@usda.gov.*                         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:
    - a foreign government,
    - an entity formed under the laws of a foreign government, or
    - 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:
    - a direct landowner (the title holder),
    - a direct leaseholder if the lease is for 10 years or more,
    - 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:
    - more than 10 acres in size in the aggregate; or
    - 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:
    - farming, ranching, pasture, orchards, vineyards, timber production, and so on; or
    - 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:                     *https://forms.sc.egov.usda.gov/​efcommon/​eFileServices/​eForms/​FSA153.PDF.*                     In addition, the foreign filer must file a separate FSA-153 form when:                
    - the agricultural land is acquired or disposed of on different dates;
    - the agricultural land is in multiple counties; or
    - 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:                     *https://www.fsa.usda.gov/​programs-and-services/​economic-and-policy-analysis/​afida/​annual-reports/​index.*                     The annual report contains information on the top-five countries                           ( print 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:
    - The longitude and latitude for each parcel;
    - The property tax ID number assigned by the county; and
    - 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                     *www.regulations.gov.*                     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                           ( print 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                     *https://www.usda.gov/​oascr/​how-to-file-a-program-discrimination-complaint*                     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:                     *program.intake@usda.gov.*

USDA is an equal opportunity provider, employer, and lender.
      ( print page 87389)          ( print page 87390)          ( print page 87391)          ( print page 87392)          ( print page 87393)    

Steven Peterson,

Acting Administrator, Farm Service Agency.

BILLING CODE 3410-E2-P

[FR Doc. 2023-27683 Filed 12-15-23; 8:45 am]

BILLING CODE 3410-E2-C