Over the past few years, federal and state lawmakers have become increasingly concerned about foreign investments in U.S. agricultural land. While there is no federal law that restricts foreign investments of agricultural land, the federal government does monitor certain foreign acquisitions and landholdings in agricultural land through a federal reporting law known as the Agricultural Foreign Investment Disclosure Act (“AFIDA”) of 1978. Essentially, AFIDA requires certain foreign persons to disclose their interests in U.S. farmland to the U.S. Department of Agriculture (“USDA”). Recently, there have been a few legislative proposals introduced in Congress that seek to amend certain provisions of AFIDA. If Congress were to enact any of the proposals, it would mark the first change to the federal reporting statute since 1998.
Background
Enacted by Congress in 1978, AFIDA established a nationwide system for collecting certain information about foreign investments and ownership of U.S. agricultural land. According to a U.S. House Report from the Committee on Agriculture (H.R. Rep. No. 95-1570, 2d Sess. 1978)) discussing AFIDA prior to its enactment, Congress was concerned with the growing number of foreign investments because these investments likely increase farmland prices, which was considered as a factor that was adding to the economic pressures affecting family-farm operations. However, the House Report asserts that determining the impact of foreign ownership of U.S. agricultural land “is difficult to gauge…because of the lack of data on the nature, magnitude, and scope of foreign investment activity.” In order to measure the impact of foreign investments in agricultural land, Congress enacted AFIDA to collect the data necessary to assess foreign investment activity within the U.S.
Under AFIDA, “foreign person who acquires or transfers any interest…in agricultural land” is required to disclose their interest in the land to USDA. 7 U.S.C. § 3501(a). Thus, a foreign person who acquires, holds, transfers, or disposes an interest in agricultural land within the U.S. is required to disclose certain information concerning such transactions and investments by filing an FSA-153 reporting form at the appropriate Farm Service Agency (“FSA”) county office. This data is compiled into an annual publication that reports the amount of cropland, pastureland, forestland, and other types of agricultural land that is foreign owned. To learn more about AFIDA, read NALC’s article titled Answering to AFIDA: Reporting Requirements of Foreign Agricultural Land Investments here.
Proposals Amending AFIDA
Over the past decade, foreign investments in agricultural land have grown. At the start of 2021, foreign persons held an interest in nearly 37.6 million acres of U.S. agricultural land according to the Farm Service Agency (“FSA”). In response to these types of investments, there have been multiple bills introduced in the 117th Congress (2021-2022) that seek to increase oversight and restrict foreign investments and acquisitions of land located within the U.S. Some of these proposed measures seek to amend certain provisions of AFIDA.
Senators Tammy Baldwin (D-WI) and Chuck Grassley (R-IA) have introduced a bill known as the Farmland Security Act of 2022 (S. 4667) that seeks to amend AFIDA. According to the sponsors of this bill, foreign investment of U.S. agricultural land “presents potential security risks to our supply chains.” Thus, this bill would require USDA to submit an annual report to Congress that details “the impact that foreign ownership of agricultural land has on family farms, rural communities, and domestic food supply.”
Proponents of this bill claim that “neither Congress nor the public have access to the disaggregated foreign ownership data” that is reported to USDA through AFIDA. Accordingly, this bill would direct USDA to create an online interactive database that presents data established from each foreign persons’ disclosure from the previous year, and would require USDA to update this database with each disclosure they receive from a foreign investor. The bill specifies that USDA would have 10 days after a foreign person files their FSA-153 to update the database with that information. In other words, the database would be updated with foreign investment data in almost real time.
Further, this proposed measure instructs USDA to organize the database information into two separate categories of foreign investors: (1) foreign individuals and (2) foreign persons that are not individuals or a government (i.e., foreign business entities). For investments of a foreign individual, the database would indicate the citizenship of that investor. Investment information of a foreign business entity will include: (i) the nature of the legal entity; (ii) the country where foreign business entity is organized; and (iii) its principal place of business.
Congress is also considering an agricultural appropriations bill for FY23 (S. 4661) that contains amendments to AFIDA that are almost identical to those proposed under the Farmland Security Act. Under S. 4661, USDA would be required to report to Congress the effect foreign investments have on family farms, rural communities, and the U.S. food supply chain. This bill also seeks to establish a database like the databased proposed under the Farmland Security Act. However, S. 4661 would only require USDA to update the database information every 90 days rather than with each foreign investment disclosure the agency receives.
The United States Innovations and Competition Act of 2021 (H.R. 4521) sought to require USDA to create an online database containing AFIDA disclosure data; however, this provision of the bill was not included in the final version of the bill that passed Congress. Thus, this piece of legislation will not amend AFIDA by establishing a foreign ownership database.
Another bill currently before Congress, known as the Security and Oversight for International Landholdings Act (“SOIL Act”) of 2022 (S. 4821), seeks to amend the disclosure requirements for foreign persons with leaseholds in agricultural land. Current AFIDA regulations exempt foreign persons from AFIDA’s reporting requirement when their lease in agricultural land is less than 10 years. 7 C.F.R. § 781.2(c)(2). The SOIL Act seeks to change this exception by reducing the lease period threshold to 5 years. In other words, foreign persons would be required to report lease agreements in agricultural land that are longer than 5 years.
The SOIL Act also seeks to amend § 3505 of AFIDA by including a provision that requires USDA to publish an annual report that describes the ownership interests in agricultural land held by foreign persons that identifies “the countries with the most extensive agricultural land holdings on a State-by-State and county-by-county basis.” USDA would also be required to include in the report “data and an analysis of agricultural land holdings in each county” within the U.S. by foreign persons from China, Russia, or any other country USDA determines to be appropriate. Further, this report would also include “an analysis of the sectors and industries for which the agricultural land holdings are use.” This proposed amendment would require USDA to make this report publicly available and would also require the agency to send a copy of the report directly to each states’ department of agriculture (or appropriate agency).
Last, Congress is also considering a bill known as the Securing America’s Land from Foreign Interference Act (S. 4703) that seeks to revise the penalty provision under AFIDA. Under current law, persons determined by USDA to have violated AFIDA are subject to a fine up to 25% of the foreign person’s interest in the agricultural land. 7 U.S.C. § 3502(b). This bill seeks to amend this provision by directing USDA to impose a fine no less than 10%, or more than 25%, of the fair market value of a violator’s interest in the agricultural land.
Conclusion
Aside from these legislative proposals, Congress has also requested an investigation in foreign farmland ownership. On October 1, 2022, U.S. House Republicans send a letter to the Governmental Accountability Office (“GAO”) requesting a study of foreign transactions and acquisitions in U.S. agricultural land and its “impact on national security, trade, and food security.” The group of policymakers also requested this study to evaluate USDA’s procedures for collecting AFIDA data and whether these procedures ensure accurate disclosure of foreign ownership in U.S. farmland.
On January 18, 2023, NALC is hosting a webinar that will focus on the federal and state legislative proposals that seek to increase oversight and restrict foreign investments and acquisitions of land located within the U.S. More information on this upcoming webinar will soon be available on NALC’s website here.
To read AFIDA’s statutory text, click here.
To read AFIDA’s associated regulations, click here.
The most recent and all previous AFIDA reports are available on FSA’s website here.
For more information on AFIDA and its reporting requirement, click here.
For more on foreign ownership of agricultural land, view NALC’s Foreign Investments in Agricultural Land: FAQs & Resource Library here.