Definition of Military Installation and the List of Military Installations in the Regulations Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States

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 (DPA) of 1950, as amended, which are codified at 50 U.S.C. 4565 (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 U.S. 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 appendix to the current regulations at part 802 (appendix A or the appendix) identifies certain military installations around which certain real estate transactions are subject to CFIUS's jurisdiction. As noted in the preamble to the final rule establishing part 802 in 2020 ( see85 FR 3158), 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. 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 U.S. Department of the Treasury (Treasury Department) initially established part 802 through the final rule that became effective on February 13, 2020 (85 FR 3158). The Treasury Department subsequently made amendments to part 802 by adding eight military installations to appendix A and making technical changes that became effective on September 22, 2023 (September 2023 Rule) (88 FR 57348). Most recently, on July 19, 2024, the Treasury Department published a notice of proposed rulemaking (Proposed Rule) (89 FR 58653) that would: (1) add 59 military installations to the appendix at parts 1 and 2; (2) move eight military installations from part 1 to part 2; (3) remove one installation from part 1 and two installations from part 2; (4) revise the definition of the term “military installation”; (5) make technical amendments to the names of 14 installations already listed on the appendix; and (6) update the locations of seven installations already listed on the appendix.

The public was given an opportunity to comment on the Proposed Rule, and comments were due by August 19, 2024. The comments received are available on the public rulemaking docket at https://www.regulations.gov (Docket TREAS-DO-2024-0010-0001).

II. Summary of Comments

During the public comment period, the Treasury Department received more than 40 comment submissions reflecting a range of views. The Treasury Department considered each comment before issuing this final rule (Final Rule). Discussed below are the comments received and the Treasury Department's responses in consideration of the comments.

Several commenters expressed the view that certain other military installations should be included in appendix A due to the nature of their operations and one commenter noted that any military or sensitive location should be considered for inclusion. Multiple commenters stated that Camp Grayling in Michigan should be added to appendix A. One commenter suggested three additional installations in Michigan for inclusion: Selfridge Air National Guard Base, Fort Custer, and Kellogg Air National Guard Base. Other commenters expressed support for the proposed inclusion of Whiteman Air Force Base in Missouri and suggested also including Ebbing Air National Guard Base in Arkansas.

One commenter requested that the one-mile boundary around installations on part 1 of appendix A be extended to 30 miles. The commenter also requested that Marine Corps Air Station Cherry Point in North Carolina be moved from part 1 to part 2 of appendix A given the nature of the military operations at the site and that the location of this facility in the regulations be updated to Havelock, NC since it is within the city limits.

The Final Rule makes no changes in response to these comments. Consistent with the Proposed Rule, the Final Rule adds Camp Grayling and Whiteman Air Force Base to the list of military installations at part 2 of appendix A. The Department of Defense identified the military installations that are the subject of this Final Rule after a comprehensive assessment that it conducted including 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. Regarding any military installations not included in the Final Rule, the Department of Defense will continue on an ongoing basis to assess its military installations and the geographic scope set under part 802 to ensure appropriate application in light of national security considerations. Consistent with the authority under section 721(a)(4)(B)(ii), CFIUS is authorized to review certain real estate transactions in close proximity to facilities or properties of the U.S. Government that are sensitive for reasons relating to national security. The list of installations provided in the Proposed Rule reflects the Department of Defense's recent comprehensive assessment of its military installations in light of national security considerations. In the future, CFIUS may add other U.S. Government facilities or properties to the list of sites identified in appendix A, as appropriate and in consultation with CFIUS member agencies and other relevant departments and agencies of the U.S. Government. In response to the comment regarding the location of Marine Corps Air Station Cherry Point, the location as listed in the Proposed Rule (Cherry Point, NC) is accurate.

Multiple commenters referenced a particular company and some expressed the view that the company should not be permitted to build an electric vehicle battery facility in Michigan. Several commenters noted that the location for the facility is near Camp Grayling, which the Proposed Rule would have added to the list of military installations in part 2 of appendix A. Further, some commenters expressed concerns about the particular company and suggested CFIUS review a specific transaction involving the company. One commenter also suggested that the Proposed Rule should apply retroactively so that CFIUS can review the particular transaction noted.

The Final Rule makes no changes in response to the comments regarding a particular company and a specific transaction. It would be inappropriate and outside the scope of the Committee's rulemaking authority to specify the application of the regulations to a particular entity or a specific transaction in the course of a rulemaking. Filing transactions with CFIUS under part 802 is a voluntary process. CFIUS reviews covered transactions to determine the effects of the transaction on the national security of the United States and conducts this review on a case-by-case basis in light of the specific facts and circumstances. If any risks to the national security of the United States arise as a result of a transaction within the jurisdiction of CFIUS, the Committee conducts a risk-based analysis consistent with the requirements in section 721( l)(4)(A) and the regulations at section 802.102. The Committee welcomes those who wish to provide tips and referrals about a particular transaction or entity to visit https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius/tips-and-referrals.

Regarding timing and applicability, this Final Rule does not apply retroactively to any transaction for which (1) the completion date is prior to the effective date set forth herein; or (2) the parties to the transaction have executed, prior to the effective date set forth herein, a binding written agreement, or other binding document, establishing the material terms of the transaction. This Final Rule takes effect 30 days from the date of publication in the Federal Register . In response to the comment about the application of the rule, the Final Rule amends the applicability rule at section 802.104 to clarify that neither the Final Rule nor the September 2023 Rule applies retroactively.

Several commenters expressed the view that foreign persons should be prohibited from purchasing any land in the United States, including land near military installations. One commenter suggested that no foreign company should be allowed to build on real estate within 100 miles of a military installation.

The Final Rule makes no changes in response to these comments. CFIUS operates within the United States' longstanding open investment policy and, consistent with its statutory authority, takes action only with respect to certain foreign investments that pose national security concerns based on a transaction-specific assessment. A categorical prohibition on real estate transactions by foreign persons would not be consistent with CFIUS's statutory authority or the open investment policy of the United States. Instead, in instances where the Committee determines that there is a national security risk arising from a transaction, and that no other authorities are adequate to mitigate that risk, the Committee, pursuant to its statutory authority under section 721( l)(3), may negotiate, enter into, or impose, and enforce any agreement or condition with any party to the transaction to mitigate the national security risk arising from the transaction or, pursuant to the authority under section 721( l)(2), may refer the transaction to the President for decision. Pursuant to the authority under section 721(d), the President may suspend or prohibit a covered transaction that threatens to impair the national security of the United States. Accordingly, the risk-based approach and the authority provided in the CFIUS statute allow the Committee and the President to take action as necessary in light of national security considerations without unduly restricting broad categories of foreign investment in the United States.

Multiple commenters noted legal and policy dynamics around U.S. states having introduced or enacted legislation restricting the purchase of real estate by foreign persons. Commenters suggested that the Treasury Department and CFIUS educate lawmakers, coordinate a federal response, consider any impacts on civil rights, and coordinate with civil society.

The Final Rule makes no changes in response to these comments. CFIUS values the views of civil society and recognizes the importance of educating the public regarding CFIUS jurisdiction and processes. CFIUS reviews covered transactions to determine the effects of the transaction on the national security of the United States and conducts this review on a case-by-case basis. If any risks to the national security of the United States are present, CFIUS conducts a risk-based analysis and analyzes the particular facts and circumstances of the transaction consistent with the requirements in section 721( l)(4)(A) and the regulations at section 802.102. The Committee welcomes those who wish to communicate on matters relating to investment security more broadly to reach out to the Treasury Department; contact information is available at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius/cfius-contact-information.

Commenters also requested clarity regarding the scope of the Proposed Rule, to include any impact the rule would have on property owners, businesses, and real estate professionals, and what, if any, exemptions for coverage exist. One commenter also requested clarification regarding whether outlying assets of installations ( e.g., auxiliary sites, component installations, etc.) that meet the definition of military installation in the regulations at section 802.227 are covered by CFIUS's jurisdiction.

The Final Rule makes no changes in response to these comments. Exceptions to CFIUS's jurisdiction over real estate transactions are provided for in statute ( see section 721(a)(4)(C)(i)) and in regulations ( see section 802.216). With respect to the military installations (and assets thereof) around which CFIUS has jurisdiction under part 802, the geographic reference tool available on the CFIUS website can be a helpful resource in identifying the boundaries of military installations. Auxiliary sites, subordinate sites, and other Department of Defense facilities that are geographically separate from their parent installation, and which meet the definition of military installation, are included in the geographic reference tool. Note that the geographic tool is provided for reference only; it should not be interpreted as guidance or an advisory opinion by CFIUS with respect to any particular transaction.

The Treasury Department also received some comments that did not address any specific provision of the Proposed Rule. One comment submission referenced “family” with no other content, another raised concern over certain chemicals, and a third suggested that only tax-paying U.S. citizens can own property in the United States. The Final Rule makes no changes in response to these comments.

III. Discussion of the Final 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 for determining whether a transaction is a covered real estate transaction because of a nearby military installation. As relevant to this Final Rule, the installations identified in the appendix at part 1 meet one of the category descriptions in section 802.227 (b) to (o). Installations identified in the appendix at part 2 meet one of the category descriptions in section 802.227 (h), (k), or (m). CFIUS's jurisdiction extends outward one mile from the boundary of the installations identified at part 1 of the appendix and outward 100 miles from the boundary of the installations identified at part 2 of the appendix.

Consistent with the Proposed Rule, this Final Rule revises appendix A to include the 59 military installations listed below and removes eight military installations from part 1 of appendix A and adds 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, the Final Rule removes three sites currently included in appendix A. Cape Cod Air Force Station is removed from part 1 because it is located within Joint Base Cape Cod, which is added to the appendix at part 2 as detailed above. Iowa National Guard Joint Force Headquarters is removed from part 2 because it is located within Camp Dodge, which is added to the appendix at part 2 as detailed above. Finally, Lackland Air Force Base is removed from part 2 because it is located within Joint Base San Antonio, which is moved from part 1 to part 2 of appendix A as detailed above.

B. Technical Amendments To Update Identification of Certain Military Installations

Consistent with the Proposed Rule, this Final Rule makes 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 respective 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 along with the names currently in the appendix.

• 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 are 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”

Consistent with the Proposed Rule, this Final Rule also makes 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” is 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 are amended to add Space Force bases, stations, and major annexes thereof. Paragraphs (g), (l), (m), and (n) of section 802.227 are 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, are added as covered installations under this category description. For paragraph (l), this Final Rule removes the exclusion for Marine Corps installations, logistics battalions, and support facilities from this category description. Paragraph (m) of section 802.227 is 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, perform surveillance, or otherwise expose national security activities at such installations. This 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) is amended by removing the reference to the Submarine Force Atlantic and Submarine Force Pacific squadrons and supporting commands and by adding major support activities and annexes. This broadens 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.

D. Applicability Rule

This Final Rule amends section 802.104 regarding the timing and applicability of the changes made herein to transactions where the completion date was before the effective date of this Final Rule; or where the parties to the transaction executed a binding written agreement, or other binding document, establishing the material terms of the transaction before the effective date of this Final Rule. This Final Rule also addresses the timing and applicability of the changes made in the September 2023 Rule with regard to transactions where the completion date was on or after February 13, 2020 and before September 22, 2023; or where the parties to the transaction executed a binding written agreement, or other binding document, establishing the material terms of the transaction after February 13, 2020 and before September 22, 2023.

IV. Rulemaking Requirements

Executive Order 12866

These regulations are 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, these regulations are 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.

Paperwork Reduction Act

The collection of information contained in these regulations has been previously submitted to the OMB for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and approved under OMB Control Number 1505-0121. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB Control Number.

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 Final Rule makes amendments to the regulations implementing section 721 of the DPA (85 FR 3158), which the Treasury Department previously determined would not significantly impact a substantial number of small entities. The amendments in this Final Rule do not change that analysis or determination. The Treasury Department also invited public comment on how the Proposed Rule would affect small entities and did not receive any specific comments on this topic.

Congressional Review Act

This rule has been submitted to the OMB's Office of Information and Regulatory Affairs, which has determined that the rule is not a “major” rule under the Congressional Review Act.

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:

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. Revise § 802.104 to read as follows:

3. 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:

4. Amend appendix A to part 802 by revising the tables entitled “Part 1” and “Part 2” to read as follows:

Appendix A to Part 802—List of Military Installations and Other U.S. Government Sites