Over the past decade, foreign investments in agricultural land have grown. At the start of 2020, foreign persons held over 35 million acres of U.S. agricultural land according to the Farm Service Agency. In response to these types of purchases, a bill known as the Foreign Adversary Risk Management (“FARM”) Act was recently introduced in Congress. Proponents of the FARM Act claim that it will help secure the nation’s food supply chain and agricultural industry from inappropriate foreign interference. Congressional representatives Ronny Jackson (R-TX) and Filemon Vela (D-TX) introduced the FARM Act in the U.S. House while Senator Tommy Tuberville (R-AL) introduced the bill in the Senate. It seeks to amend the Defense Production Act (“DPA”) of 1950 to place agriculture in the Committee on Foreign Investment in the United States (“CFIUS”). Specifically, the legislation seeks to require CFIUS to consider agriculture-specific criteria when determining whether a foreign investment poses a risk to the United States national security.
CFIUS
CFIUS is a multi-government agency entity that is authorized by the DPA (50 U.S.C. § 4565) to review certain transactions involving foreign investments and acquisitions of American companies and real estate to determine whether there is a threat to national security. Originally established by Executive Order 11858issued by President Gerald Ford, CFIUS was codified and given statutory authority in 2008 under the Foreign Investment and National Security Act (FINSA). In other words, Congress assigned specific powers and duties to CFIUS to enforce the provisions of the FINSA. Specifically, the FINSA reformed CFIUS by implementing new vetting procedures and expanding the Committee’s role in reviewing foreign investments. CFIUS was reformed again in 2018 with the passage of the Foreign Investment Risk Review Modernization Act (“FIRRMA”), which expands the Committee’s power to review certain transactions.
Essentially, CFIUS has the power to suspend, renegotiate, and impose conditions to transactions (whether pending or already completed) that may pose a risk to the national security of the U.S. In other words, the Committee uses these measures to mitigate any threat to national security that arises from a transaction. Transactions that may pose a risk to the national security, for example, are investments and acquisitions ofcritical infrastructure, such as transportation, telecommunication, public health, and energy. Another type of transaction CFIUS closely reviews include investments in critical technologies. In general, these technologies are created or used by certain U.S. businesses and industries that are essential to the nation’s economic and national security.
Typically, CFIUS beings the review process when a foreign investor voluntarily notifies the Committee of its potential investment. However, CFIUS has the authority to review certain transactions that may raise national security concerns but are not reported by a foreign investor. After initiating the review process, CFIUS has 45 days to determine whether it will allow a transaction move forward, or if a subsequent investigation is needed. If so, it will have an additional 45 days to determine whether the foreign investment presents national security risks.
After the review or investigation is complete, if CFIUS determines a transaction still poses a risk to national security, it may refer a transaction to the President. Although CFIUS has the ability to use measures to mitigate some risks a transaction may impose, the President is the only official with authority to block a foreign merger, acquisition, or takeover (50 U.S.C.(d)(1)). Accordingly, CFIUS may refer a transaction to the President and recommend the President suspend or block the transaction. However, the President is not required to follow a recommendation from CFIUS. Nevertheless, if the President decides to review a foreign transaction and finds that there is credible evidence that the transaction will impair national security, they can choose to suspend or block the transaction.
FARM Act
In an effort to control foreign investments in U.S. agricultural production and food supply chains, federal lawmakers have introduced the FARM Act in both chambers of Congress. There are four main components to the piece of legislation.
First, the bill adds the Secretary of Agriculture as a member to CFIUS. Currently, the agricultural industry is not directly represented on CFIUS, and legislators in the past have criticized the lack of agricultural representation on the Committee. Much of this criticism stems from the acquisition of Smithfield Foods, one of the largest pork processors in the nation, by a Chinese-based corporation in 2012. More criticism from lawmakers surfaced in 2017 when Bayer and Monsanto, DuPont and Down Chemical, and ChemChina and Syngenta announced their plans to merge. Each of these acquisitions were reviewed and approved by CFIUS without representation from the agricultural sector on the Committee. According to the FARM Act sponsors, placing the Secretary of Agriculture as a CFIUS member will provide leverage to protect the interests of the agricultural industry in foreign investments and acquisitions of U.S. agricultural businesses.
Second, the bill adds language to the DPA to protect the agricultural sector from foreign control through investments, acquisitions, mergers, or agreements. Essentially, this provision of the legislation directs CFIUS to review or investigate transactions that could result in foreign control of a U.S. business that engages in agriculture.
The third component of the bill designates agricultural supply chains as critical infrastructure and critical technologies under the DPA. This provision places the agricultural industry and food supply chains as areas CFIUS can consider as it relates to national security. In other words, agriculture and food security will be considered as matters of national security.
Fourth, the bill mandates the United States Department of Agriculture (“USDA”) and the Government Accountability Office (“GAO”) to conduct an inspection of foreign influences in the U.S. agriculture industry and submit a report to Congress. In this report, USDA and GAO must specify current and potential foreign agriculture investments, the greatest international threats for increased foreign control in agriculture, and agriculture-related tactics or schemes used by foreign governments to target the U.S. agricultural industry.
Other Legislation
The FARM Act is not the first piece of legislation that would give USDA representation on CFIUS and require CFIUS to consider the agricultural industry as a matter of national security. In 2017, a bipartisan bill known as the Food Security is National Security Act (S.616) was introduced in Congress. This bill sought to add agriculture and food systems as threats considered by CFIUS and sought to add the Secretary of Agriculture as a member of the Committee. Ultimately, this bill was referred to the Senate Banking Committee, but did not move forward in the legislative process. Nevertheless, there are other pieces of legislation besides the FARM Act that seek to prevent foreign investments in U.S. agriculture currently being considered by Congress.
In May 2021, congressional representative Frank Lucas (R-OK) introduced the Agricultural Security Risk Review Act (H.R. 3413). This bill, which was previously introduced in Congress in 2019, would add the Secretary of Agriculture to CFIUS. Another bill being considered in Congress is the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2022 (H.R. 4356). The text of this legislation provides the Secretary of Agriculture the ability to block any purchase of agricultural land by companies fully or partly controlled by the Chinese government. Additionally, this bill would prohibit these companies from participating in USDA-led support programs.
To read the FARM Act, click here.
To track the FARM Act as it progresses through the legislative process, click here.