Definition of Military Installation and the List of Military Installations in Regulations 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.

SUMMARY:

This proposed rule would amend the regulations that implement the provisions relating to real estate transactions in section 721 of the Defense Production Act of 1950, as amended. Specifically, the proposed rule would amend the regulations by adding, moving, and removing certain military installations on the appendix at parts 1 and 2, and making corresponding revisions to the definition of the term “military installation.” The proposed rule would also make technical amendments to update the name or location information for certain military installations already listed on the appendix.

DATES:

Written comments must be received by August 19, 2024.

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 R. Sharma, Director, Office of Investment Security Policy and International Relations, 1500 Pennsylvania Avenue NW, Washington, DC 20220.

The Department of the Treasury encourages comments to be submitted via https://www.regulations.gov. Please submit comments only and include your name and company name (if any) and cite “Amendments to the Definition of Military Installation and the List of Military Installations in Regulations Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States” in all correspondence. All comments submitted, including attachments and other supporting material, in response to this proposed rule will be made public, including any personally identifiable or confidential business information that is included in a comment. Therefore, commenters should submit only information that they wish to make publicly available. Commenters who wish to remain anonymous should not include identifying information in their comments.

FOR FURTHER INFORMATION CONTACT:

Meena R. Sharma, Director, Office of Investment Security Policy and International Relations, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-3425; email: CFIUS.Regulations@treasury.gov.

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 (Section 721) and establish the process and procedures of the Committee on Foreign Investment in the United States (CFIUS or the Committee) 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.

Section 721 authorizes the president or his designee ( i.e., CFIUS) to review certain real estate transactions by foreign persons where the real estate at issue is located in the United States and (a) is located within, or will function as part of, an air or maritime port; or (b) is in close proximity to a United States military installation or another facility or property of the United States Government that is sensitive for reasons relating to national security; could reasonably provide the foreign person the ability to collect intelligence on activities being conducted at such an installation, facility, or property; or could otherwise expose national security activities at such an installation, facility, or property to the risk of foreign surveillance.

The current regulations at part 802 identify a subset of military installations around which certain real estate transactions are covered under CFIUS's jurisdiction. The specific military installations are listed in appendix A by name and location (or township/range), and section 802.227 sets forth the category descriptions of the military installations identified in appendix A. The locations listed in appendix A are intended to aid in the identification of the relevant installations only and do not represent specific boundaries of the installations for purposes of determining whether a transaction is a covered real estate transaction.

The preamble to the final rule establishing part 802 ( see85 FR 3158) noted that the military installations listed in the appendix were identified by the U.S. Department of Defense (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 established under the rules to ensure appropriate application in light of national security considerations. In 2023, as a result of the assessment of military installations by the Department of Defense at that time, amendments made to the regulations added eight military installations to appendix A and updated the names of five military installations ( see88 FR 57348, published August 23, 2023). Since then, the Department of Defense has completed a comprehensive assessment of its military installations through coordination across all military services, considering factors such as the operations, assets, missions, and training at each installation and appropriateness for coverage under Section 721. While the Department of Defense continuously evaluates its military installations to ensure appropriate application of Section 721 in light of national security considerations, the recent completion of this comprehensive assessment prompted the changes described in this proposed rule—namely, the addition of 40 military installations to part 1 of appendix A around which CFIUS's real estate jurisdiction generally extends one mile from the installation's boundary; the addition of 19 military installations to part 2 of appendix A around which CFIUS's real estate jurisdiction generally extends 100 miles from the installation's boundary; the movement of eight military installations from part 1 to part 2 of appendix A; the removal of one installation from part 1 and two installations from part 2; and corresponding revisions to the definition of the term “military installation.” Additionally, the names of 14 installations already in appendix A would be technically amended to reflect official installation name changes by the Department of Defense and the location of seven installations would be updated to more directly identify the installations' approximate location.

II. Discussion of the Rule

A. Amendments to the Military Installations Listed in Appendix A

The appendix to the regulations at part 802 identifies certain bases, ranges, and other installations that, for the purposes of the regulation, meet the definition of “military installation” at section 802.227 and, to assist in the identification of such installations, the related location (or township/range) information. The appendix is important in determining whether a transaction is a covered real estate transaction because of a nearby military installation. As relevant to this proposed rule, the installations identified in the appendix at part 1 meet one of the category descriptions in section 802.227 (b) to (o). Installations at part 2 meet one of the category descriptions in section 802.227 (h), (k), or (m).

This proposed rule would revise appendix A to include the 59 military installations listed below as well as to remove eight military installations from part 1 of appendix A and add them to part 2 (as noted below).

Part 1

• Anniston Army Depot, located in Anniston, Alabama
• Barter Island Regional Radar Site, located in Barter Island, Alaska
• Blue Grass Army Depot, located in Richmond, Kentucky
• Camp Blaz, located in Dededo, Guam
• Camp Navajo, located in Bellemont, Arizona
• Camp Roberts, located in San Miguel, California
• Cold Bay Regional Radar Site, located in Cold Bay, Alaska
• Detroit Arsenal, located in Warren, Michigan
• Hawthorne Army Depot, located in Hawthorne, Nevada
• Indian Mountain Regional Radar Site, located in Indian Mountain, Alaska
• Iowa Army Ammunition Plant, located in Middletown, Iowa
• Joint Base Myer-Henderson Hall, located in Arlington, Virginia
• Joint Systems Manufacturing Center—Lima, located in Lima, Ohio
• Kenai Regional Radar Site, located in Kenai, Alaska
• Kotzebue Regional Radar Site, located in Kotzebue, Alaska
• Lake City Army Ammunition Plant, located in Independence, Missouri
• Letterkenny Army Depot, located in Chambersburg, Pennsylvania
• Lisburne Regional Radar Site, located in Cape Lisburne, Alaska
• Marine Corps Logistics Base Albany, located in Albany, Georgia
• Marine Corps Logistics Base Barstow, located in Barstow, California
• Marine Corps Support Facility Blount Island, located in Jacksonville, Florida
• McAlester Army Ammunition Plant, located in McAlester, Oklahoma
• Military Ocean Terminal Concord, located in Concord, California
• Military Ocean Terminal Sunny Point, located in Brunswick County, North Carolina
• Naval Air Station Corpus Christi, located in Corpus Christi, Texas
• Naval Logistics Support Activity Ketchikan, located in Ketchikan, Alaska
• Naval Logistics Support Activity LaMoure, located in LaMoure, North Dakota
• Naval Logistics Support Annex Orlando, located in Okahumpka, Florida
• Naval Logistics Support Facility Aguada, located in Aguada, Puerto Rico
• Naval Logistics Support Facility Cutler, located in Cutler, Maine
• Naval Suffolk Facility, located in Suffolk, Virginia
• Pine Bluff Arsenal, located in White Hall, Arkansas
• Pueblo Chemical Depot, located in Pueblo, Colorado
• Red River Army Depot, located in Texarkana, Texas
• Romanzof Regional Radar Site, located in Cape Romanzof, Alaska
• Scott Air Force Base, located in St. Clair County, Illinois
• Scranton Army Ammunition Plant, located in Scranton, Pennsylvania
• Sparrevohn Regional Radar Site, located in Sparrevohn, Alaska
• Tatalina Regional Radar Site, located in Tatalina, Alaska
• Tooele Army Depot, located in Tooele, Utah

Part 2

• Altus Air Force Base, located in Altus, Oklahoma
• Arnold Air Force Base, located in Coffee County and Franklin County, Tennessee (moved from part 1 to part 2)
• Barksdale Air Force Base, located in Bossier City, Louisiana
• Camp Dodge, located in Johnston, Iowa
• Camp Grayling, located in Grayling, Michigan
• Camp Williams, located in Bluffdale, Utah
• Cannon Air Force Base, located in Clovis, New Mexico
• Chocolate Mountain Aerial Gunnery Range, located in Niland, California
• Columbus Air Force Base, located in Columbus, Mississippi
• Dover Air Force Base, located in Delmarva, Delaware
• Fort Novosel, located in Dale County, Alabama
• Goodfellow Air Force Base, located in San Angelo, Texas
• Joint Base Cape Cod, located in Sandwich, Massachusetts
• Joint Base Charleston, located in North Charleston, South Carolina
• Joint Base San Antonio, located in San Antonio, Texas (moved from part 1 to part 2)
• Little Rock Air Force Base, located in Little Rock, Arkansas
• Malmstrom Air Force Base, located in Great Falls, Montana (moved from part 1 to part 2)
• Maxwell-Gunter Air Force Base, located in Montgomery, Alabama
• Moody Air Force Base, located in Valdosta, Georgia (moved from part 1 to part 2)
• Muscatatuck Urban Training Center, located in Butlerville, Indiana
• Redstone Arsenal, located in Huntsville, Alabama (moved from part 1 to part 2)
• Schriever Air Force Base, located in Colorado Springs, Colorado (moved from part 1 to part 2)
• Tinker Air Force Base, located in Midwest City, Oklahoma (moved from part 1 to part 2)
• Townsend Bombing Range, located in McIntosh County, Georgia
• Vance Air Force Base, located in Enid, Oklahoma
• Whiteman Air Force Base, located in Knob Noster, Missouri
• Wright-Patterson Air Force Base, located in Dayton, Ohio (moved from part 1 to part 2)

Additionally, three sites currently included in appendix A would be removed. Cape Cod Air Force Station would be removed from part 1 because it is located within Joint Base Cape Cod, which would be added to the appendix at part 2 as detailed above. Iowa National Guard Joint Force Headquarters would be removed from part 2 because it is located within Camp Dodge, which would be added to the appendix at part 2 as detailed above. Finally, Lackland Air Force Base would be removed from part 2 because it is located within Joint Base San Antonio, which would be moved from part 1 to part 2 of appendix A as detailed above.

B. Technical Amendments To Update Identification of Certain Military Installations

This proposed rule would make technical amendments to update the names of 14 military installations based on recommendations of the Department of Defense Naming Commission, the establishment of the U.S. Space Force (Space Force), and other changes to reflect the official names of the installations at present.

More specifically, these changes include technical corrections to the names of five military installations as a result of the recommendation of the Department of Defense Naming Commission available at https://www.defense.gov/News/News-Stories/Article/Article/3260434/dod-begins-implementing-naming-commission-recommendations/ as well as name changes to more accurately reflect the installations' official name.

Additionally, on December 20, 2019, Congress established the Space Force as an armed force within the Department of the Air Force. Nine of the military installation names below are a result of the names having been officially changed by the Department of Defense and reflect efforts to align installations with space-focused operations under the appropriate military branch. These name changes are detailed below.

• Army Research Office (formerly Army Research Lab—Raleigh Durham)
• Biometric Technology Center Defense Forensics and Biometrics Agency (formerly Biometric Technology Center Biometrics Identity Management Activity)
• Buckley Space Force Base (formerly Buckley Air Force Base)
• Cape Canaveral Space Force Station (formerly Cape Canaveral Air Force Station)
• Cavalier Space Force Station (formerly Cavalier Air Force Station)
• Cheyenne Mountain Space Force Station (formerly Cheyenne Mountain Air Force Station)
• Clear Space Force Station (formerly Clear Air Force Station)
• Combat Capabilities Development Command Soldier Center (formerly U.S. Army Natick Soldier Systems Center)
• Eareckson Air Station (formerly Eareckson Air Force Station)
• Fort Eisenhower (formerly Fort Gordon)
• Patrick Space Force Base (formerly Patrick Air Force Base)
• Peterson Space Force Base (formerly Peterson Air Force Base)
• Schriever Space Force Base (formerly Schriever Air Force Base)
• Vandenberg Space Force Base (formerly Vandenberg Air Force Base)

The locations of seven installations on the appendix at parts 1 and 2 would be updated to assist the public in identifying the installations by reference to their specific location. While these seven installations have not relocated, the updates to the location information are for the purposes of providing further clarity in identifying relevant sites. Some of the location updates pertain to installations also discussed above due to name changes.

• Army Research Office, located in Durham, NC (formerly Army Research Lab—Raleigh Durham, located in Raleigh Durham, NC)
• Camp Mackall, located in Southern Pines, NC (formerly Camp Mackall, located in Pinebluff, NC)
• Fort Campbell, located in Hopkinsville, KY and Clarksville, TN (formerly Fort Campbell, located in Hopkinsville, KY)
• Fort Johnson, located in Vernon Parrish, LA (formerly Fort Johnson, located in Leesville, LA)
• Fort Knox, located in Elizabethtown, KY (formerly Fort Knox, located in Fort Knox, KY)
• Fort Leavenworth, located in Leavenworth County, KS (formerly Fort Leavenworth, located in Leavenworth, KS)
• Hardwood Range, located in Necedah, WI (formerly Hardwood Range, located in Necehuenemedah, WI)

C. Amendments to the Definition of “Military Installation”

This proposed rule would also make several amendments to the definition of the term “military installation” at section 802.227 of the regulations. As defined in the current regulations, the term “military installation” means any site that meets certain category descriptions, and as identified in appendix A to part 802. The definition of “military installation” would be amended with respect to paragraphs (e), (f), (g), (l), (m), and (n) of section 802.227.

Consistent with name changes discussed in section B above, paragraphs (e) and (f) of section 802.227 would be amended to add Space Force bases, stations, and major annexes thereof. Paragraphs (g), (l), (m), and (n) of section 802.227 would be amended to expand the list of applicable installations that meet these category descriptions. With respect to paragraph (g) of section 802.227, Army major depots, arsenals, and military terminals, including those that are not collocated with an Army installation included in the appendix, would be added as covered installations under this category description. For paragraph (l), the proposed rule would remove the exclusion for Marine Corps installations, logistics battalions, and support facilities from this category description. Paragraph (m) of section 802.227 would be amended to remove the set of states and reference to military ranges owned by the Navy or Air Force. Certain real estate transactions near military ranges owned by each of the Armed Forces could reasonably provide a foreign person the ability to collect intelligence or perform surveillance or could otherwise expose national security activities at such installations. This proposed change broadens the category to any military range as appropriate and is consistent with the definition of military range as defined in 10 U.S.C. 101(f)(1), which defines a range as “a designated land or water area that is set aside, managed, and used for range activities of the Department of Defense.” Finally, paragraph (n) would be amended by removing the reference to the Submarine Force Atlantic and Submarine Force Pacific squadrons and supporting commands and adding major support activities and annexes. This would broaden the category to include any relevant Naval base and air station and major support activities and annexes thereof, as identified by the Department of Defense.

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 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 1(d) of the June 9, 2023, 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 Defense Production Act of 1950, as amended (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
• Investment companies
• Investments
• 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

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.

2. Amend § 802.227 by:

a. In paragraph (e), adding “, and Space Force bases and major annexes thereof” after “Air Force bases and major annexes thereof”; and

b. Revising paragraphs (f), (g), (l), (m), and (n).

The revisions read as follows:

3. Revise parts 1 and 2 of appendix A to part 802 to read as follows: