Direct Investment Surveys: BE-13, Survey of New Foreign Direct Investment in the United States, and Changes to Private Fund Reporting on Direct Investment Surveys, 43126-43130 [2016-15598]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Economic Analysis

[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)]
[Proposed Rules]
[Pages 43126-43130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15598]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Bureau of Economic Analysis

15 CFR Part 801

[Docket No. 160531475-6475-01]
RIN 0691-AA85


Direct Investment Surveys: BE-13, Survey of New Foreign Direct 
Investment in the United States, and Changes to Private Fund Reporting 
on Direct Investment Surveys

AGENCY: Bureau of Economic Analysis, Commerce.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would amend regulations of the Department 
of Commerce's Bureau of Economic Analysis (BEA) to set forth the 
reporting requirements for the BE-13, Survey of New Foreign Direct 
Investment in the United States. This proposed rule also provides 
information about, and an opportunity to comment on, plans to amend the 
reporting requirements for certain private funds on BEA's surveys of 
foreign direct investment in the United States, including the BE-605, 
Quarterly Survey of Foreign Direct Investment in the United States; the 
BE-15, Annual Survey of Foreign Direct Investment in the United States; 
and the BE-13, Survey of New Foreign Direct Investment in the United 
States.
    The BE-13 survey collects information on the acquisition or 
establishment of U.S. business enterprises by foreign investors, and 
information on expansions by existing U.S. affiliates of foreign 
companies. The data collected through the survey are used to measure 
the amount of new foreign direct investment in the United States and 
ensure complete coverage of BEA's other foreign direct investment 
statistics. BEA proposes several changes to the survey that will 
simplify reporting and provide more complete information for use in 
BEA's direct investment statistics. BEA also proposes

[[Page 43127]]

changes in survey form design and accompanying instructions to improve 
the quality of the data collected and reduce respondent burden. This 
mandatory BE-13 survey is required from persons subject to the 
reporting requirements, whether or not they are contacted by BEA.

DATES: Comments on this proposed rule will receive consideration if 
submitted in writing on or before 5:00 p.m. August 30, 2016.

ADDRESSES: You may submit comments, identified by RIN 0691- AA85, and 
referencing the agency name (Bureau of Economic Analysis), by any of 
the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. For Keyword or ID, 
enter ``EAB-2016-0001.''
     Email: Patricia.Abaroa@bea.gov.
     Mail: Office of the Chief, Direct Investment Division, 
U.S. Department of Commerce, Bureau of Economic Analysis, BE-49, 
Washington, DC 20233.
     Hand Delivery/Courier: Office of the Chief, Direct 
Investment Division, U.S. Department of Commerce, Bureau of Economic 
Analysis, BE-49, 4600 Silver Hill Road, Suitland, MD 20746.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in the 
proposed rule should be sent to BEA through any of the methods above 
and also to the Office of Management and Budget (OMB), OIRA, Paperwork 
Reduction Project 0608-0035, Attention PRA Desk Officer for BEA, via 
email at pbugg@omb.eop.gov, or by FAX at 202-395-7245.
    Public Inspection: All comments received are a part of the public 
record and will generally be posted to https://www.regulations.gov 
without change. All personal identifying information (for example, 
name, address, etc.) voluntarily submitted by the commentator may be 
publicly accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. BEA will accept anonymous 
comments (enter N/A in required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe portable document file (pdf) formats 
only.

FOR FURTHER INFORMATION CONTACT: Patricia Abaroa, Chief, Direct 
Investment Division (BE-49), Bureau of Economic Analysis, U.S. 
Department of Commerce, 4600 Silver Hill Road, Washington, DC 20233; 
phone (301) 278-9591.

SUPPLEMENTARY INFORMATION: BEA will conduct the BE-13 survey under the 
authority of the International Investment and Trade in Services Survey 
Act (22 U.S.C. 3101-3108). Section 4(a) of the Act provides that the 
President shall, to the extent he deems necessary and feasible,
    (1) conduct a regular data collection program to secure current 
information on international capital flows and information related to 
international investment and trade in services, including (but not 
limited to) such information as may be necessary for computing and 
analyzing the United States balance of payments, employment and taxes 
of United States parents and affiliates, and the international 
investment and trade in services position of the United States;
    (2) conduct such studies and surveys as may be necessary to prepare 
reports in a timely manner on specific aspects of international 
investment and trade in services which may have significant 
implications for the economic welfare and national security of the 
United States.
    In Section 3 of Executive Order 11961, the President delegated the 
responsibility for performing functions under the Act concerning direct 
investment to the Secretary of Commerce, who has redelegated the 
responsibility to BEA.
    The purpose of the BE-13 survey is to collect data on the 
acquisition or establishment of U.S. business enterprises by foreign 
investors and the expansion of existing U.S. affiliates of foreign 
companies to establish a new facility where business is conducted. The 
data collected on the survey are used to measure the amount of new 
foreign direct investment in the United States, assess the impact on 
the U.S. economy, and based on this assessment, make informed policy 
decisions regarding foreign direct investment in the United States. 
Foreign direct investment in the United States is defined as the 
ownership or control, directly or indirectly, by one foreign person 
(foreign parent) of 10 percent or more of the voting securities of an 
incorporated U.S. business enterprise, or an equivalent interest of an 
unincorporated U.S. business enterprise, including a branch.
    BEA will make the survey available via eFile, BEA's electronic 
filing system. Notifications will be mailed to respondents as BEA 
becomes aware of a potentially reportable investment or when annual 
cost updates are needed. A response is required whether or not the 
respondent is contacted by BEA. The forms are due no later than 45 days 
after the acquisition is completed, the new U.S. business enterprise is 
established, the expansion is begun, the cost update is requested, or a 
notification letter is received from BEA by a U.S. business enterprise 
that does not meet the filing requirements for the survey.
    This proposed rule would amend 15 CFR 801.7 to set forth the 
reporting requirements for the BE-13, Survey of New Foreign Direct 
Investment in the United States. The Department of Commerce, as part of 
its continuing effort to reduce paperwork and respondent burden, 
invites the general public and other Federal agencies to comment on 
proposed and/or continuing information collections, as required by the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520 (PRA).

Description of Changes

    BEA proposes to change the reporting requirements for certain 
private funds that file BEA's surveys of foreign direct investment in 
the United States: The BE-605, Quarterly Survey of Foreign Direct 
Investment in the United States; BE-15, Annual Survey of Foreign Direct 
Investment in the United States; and the BE-13, Survey of New Foreign 
Direct Investment in the United States. The BE-12, Benchmark Survey of 
Foreign Direct Investment in the United States, will also be affected 
by this change but will be addressed in a separate proposed rule in 
2017.
    BEA, in cooperation with the Treasury Department, proposes to 
instruct reporters of investments in private funds that meet the 
definition of direct investment (that is, ownership by one person of 10 
percent or more of the voting interest of a business enterprise) but 
display characteristics of portfolio investment (specifically, 
investors who do not intend to control or influence the management of 
an operating company) to report through the Treasury International 
Capital (TIC) reporting system, where other related portfolio 
investments are already being reported, and not to report on BEA's 
direct investment surveys. Direct investment in operating companies, 
including investment by and through private funds, will continue to be 
reported to BEA. This change will align the U.S. direct investment and 
portfolio investment data more closely with the intent of the 
investment. In addition, it will reduce burden for respondents, many of 
whom now report both to the TIC reporting system and to BEA's direct 
investment reporting system. Under the planned change, U.S.

[[Page 43128]]

affiliates that are private funds but do not own, directly or 
indirectly, 10 percent or more of the voting interest of another 
business enterprise that is not also a private fund or holding company, 
will no longer be required to report on BEA surveys of foreign direct 
investment in the United States.
    The proposed changes also amend the regulations and the survey 
forms for the BE-13 survey. These amendments include changes in 
reporting requirements and questionnaire design and instructions as 
well as data items collected. The following changes are specific to the 
BE-13.
    BEA proposes to combine Forms BE-13A, Report for Acquisition of a 
U.S. Business Enterprise That Remains a Separate Entity, and BE-13C, 
Report for Acquisition of a U.S. Business Enterprise That is Merged 
With an Existing U.S. Affiliate, into one form and discontinue the use 
of Form BE-13C. BEA proposes that these acquisitions be filed on Form 
BE-13A along with acquired U.S. business enterprises that will operate 
as a separate legal entity after the acquisition. The revised Form BE-
13A will be a report for a U.S. business enterprise when a foreign 
entity acquires a voting interest (directly, or indirectly through an 
existing U.S. affiliate) in that U.S. business enterprise (including 
segments, operating units, or real estate) and (1) the total cost of 
the acquisition is greater than $3 million; and (2) by this 
acquisition, the foreign entity now owns at least 10 percent of the 
voting interest (directly, or indirectly through an existing U.S. 
affiliate) in the acquired U.S. business enterprise. BEA originally 
offered separate forms to alleviate burden on the merging entities by 
not asking unnecessary questions. BEA found that companies often did 
not understand the difference between the forms and consequently 
reported on the wrong one, resulting in resubmissions. Combining the 
forms will eliminate confusion and the need for resubmission. BEA 
proposes to redesign Form BE-13A--adding, deleting, and revising 
questions--to limit the burden for the merging entities. These changes 
will not affect the data reported on the survey.
    BEA proposes to add an instruction to eliminate the requirement to 
file two forms--Form BE-13B (establishment) and Form BE-13A 
(acquisition)--when a new U.S. business enterprise is established to 
facilitate a single U.S. acquisition that takes place within 30 days. 
The U.S. business enterprise will be asked to consolidate the new U.S. 
business enterprise with the acquired U.S. business enterprise and 
submit a single Form BE-13A. The additional Form BE-13B did not provide 
any benefit to BEA's data collection and the elimination of the BE-13B 
filing requirement will be a reduction of burden on respondents. A 
question will be added to Form BE-13A to capture the names of both the 
established and acquired entities in this scenario.
    BEA proposes to clarify the reporting requirements for Form BE-13E, 
Cost Update for Projects Originally Reported on Forms BE-13B or BE-13D, 
by removing the reference to the established or expanded business 
enterprise still being under construction. At least one Form BE-13E 
must be filed for each reported BE-13B or BE-13D form to obtain actual 
costs since the cost data provided on these forms may not be final when 
filed.
    BEA is not proposing any changes to the reporting requirements for 
Form BE-13D, Report for the Expansion of an Existing U.S. Affiliate, or 
Form BE-13 Claim for Exemption.
    BEA proposes to modify the questions on existing U.S. affiliates in 
the ownership chain between the acquired or established U.S. business 
enterprise and the foreign parent to narrow the focus to the specific 
affiliates needed for analysis and to improve the sample frames of the 
other BEA surveys. Currently, the questions about existing U.S. 
affiliates are part of the foreign parent section, which is repeated 
for each foreign parent, creating duplicate entries for existing U.S. 
affiliates that have multiple foreign parents. The revised survey forms 
will eliminate this duplication by creating a new section for reporting 
ownership by existing U.S. affiliates. The updated questions increase 
the value of the collected information, reduce processing time, and 
reduce burden on respondents by greatly reducing the likelihood they 
provide duplicate or otherwise unneeded information.
    BEA proposes to restructure and rephrase the cost questions to more 
accurately capture any funding from the affiliated foreign group to 
facilitate the new foreign direct investment and to determine whether 
the funding was in the form of a loan or capital contribution. These 
data are needed to support BEA's U.S. International Transactions 
Accounts.
    BEA proposes to add an instruction on Forms BE-13B and BE-13D to 
direct U.S. businesses to report total expected costs by year based on 
their fiscal year end. Previously, the form did not specify whether to 
report costs on a calendar or fiscal year end basis.
    BEA proposes to add an instruction on Form BE-13 Claim for 
Exemption to direct U.S. businesses that are reporting expansions to 
skip the questions asking for U.S. affiliates' total assets, total 
liabilities, and net income (loss). These questions are not asked on 
Form BE-13D, Report for the Expansion of an Existing U.S. Affiliate, 
where expected costs are greater than $3 million, so they are not 
required for expansions with expected costs of $3 million or less. This 
was an oversight when BEA created the survey form. U.S. affiliate total 
sales, number of employees, industry code, country of foreign parent, 
and country of ultimate beneficial owner will still be required.
    BEA proposes to eliminate ``lease'' and ``construction'' from the 
list of expected costs on Forms BE-13B and BE-13D. BEA will continue to 
collect data on land; property, plant, and equipment (PP&E); 
intellectual property rights; fees, taxes, permits, and licenses; and 
other costs. Since leased equipment can also be classified as 
construction costs or PP&E, respondents struggled with these questions 
and the data BEA collected had costs inconsistently classified. BEA 
determined that any capitalized lease or construction costs could be 
collected as PP&E, so lease and construction can be eliminated. Any 
construction costs that are not to be capitalized can be combined with 
other costs.
    BEA proposes to add a question to Form BE-13D to collect the name 
of the expanding U.S. affiliate and to Form BE-13 Claim for Exemption 
to collect the name of the acquired, established, or expanding U.S. 
business enterprise. BEA has found that the name of the company filing 
these forms is often different than the name of the acquired, 
established, or expanding U.S. business enterprise. Obtaining the name 
of the U.S. business enterprise would help BEA evaluate respondent 
compliance.
    BEA proposes to add a question to Form BE-13 Claim for Exemption to 
collect the state where the new investment is located in cases when 
this form is being filed to report a new investment that met all the 
requirements for filing on Forms BE-13A, BE-13B, or BE-13D except the 
$3 million reporting threshold. This addition will improve BEA's data 
on new investment by state.

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.

Executive Order 13132

    This proposed rule does not contain policies with Federalism 
implications

[[Page 43129]]

sufficient to warrant preparation of a Federalism assessment under E.O. 
13132.

Paperwork Reduction Act

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the PRA. The requirement 
will be submitted to OMB for approval as a reinstatement, with change, 
of a previously approved collection under OMB control number 0608-0035.
    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA unless that collection displays a currently 
valid OMB control number.
    The BE-13 survey, as proposed, is expected to result in the filing 
of reports from approximately 2,550 U.S. affiliates each year. The 
respondent burden for this collection of information will vary from one 
company to another, but is estimated to average 1.1 hours per response, 
including time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Thus the total respondent 
burden for this survey is estimated at 2,805 hours, compared to 2,160 
hours for the previous BE-13 survey estimate. The increase in burden 
hours is due to the increase in the number of respondents expected to 
file. The previous estimate of the number of respondents was made 
before the survey was launched; the revised estimate is based on two 
years of data collection.
    Comments are requested concerning: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) The accuracy of the burden estimate; (c) 
Ways to enhance the quality, utility, and clarity of the information 
collected; and (d) Ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in the 
proposed rule should be sent to both BEA and OMB following the 
instructions given in the ADDRESSES section above.

Regulatory Flexibility Act

    The Chief Counsel for Regulation, Department of Commerce, has 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, under the provisions of the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 605(b), that this proposed rulemaking, if adopted, will 
not have a significant economic impact on a substantial number of small 
entities.
    Most of the U.S. business enterprises that are required to file the 
survey are units of multinational enterprises. In order to qualify as a 
small business, the multinational enterprise as a whole must be 
evaluated when determining if the business meets the size standards set 
by the Small Business Administration. While BEA only collects 
information on the U.S. portion of the multinational enterprise, BEA 
estimates, based on private subscription-based databases, that fewer 
than 2 percent of the U.S. businesses required to file the BE-13 survey 
are units of foreign multinational enterprises that would be considered 
small businesses.
    For the few small businesses that meet the reporting requirements 
of the survey, BEA has attempted to keep burden to a minimum by asking 
only those questions that are considered essential. The questions 
required are for data items that a company would ordinarily have 
obtained when planning an acquisition, establishment, or expansion and 
therefore the answers are likely to be readily available from the 
existing records of the business.
    Because few small businesses are required to file the survey and 
because those that are impacted are subject to only a minimal reporting 
burden, the Chief Counsel for Regulation certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.

List of Subjects in 15 CFR Part 801

    Economic statistics, Foreign investment in the United States, 
International transactions, Penalties, Reporting and record keeping 
requirements.

    Dated: June 17, 2016.
Brian Moyer,
Director, Bureau of Economic Analysis.

    For reasons set forth in the preamble, BEA proposes to amend 15 CFR 
part 801 as follows:

PART 801--SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. 
AND FOREIGN PERSONS AND SURVEYS OF DIRECT INVESTMENT

0
1. The authority citation for 15 CFR part 801 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; 
E.O. 11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 
CFR, 1981 Comp. p. 173); and E.O. 12518 (3 CFR, 1985 Comp. p. 348).
0
2. Amend Sec.  801.7 to read as follows:


Sec.  801.7  Rules and regulations for the BE-13, Survey of New Foreign 
Direct Investment in the United States.

    The BE-13, Survey of New Foreign Direct Investment in the United 
States, is conducted to collect data on the acquisition or 
establishment of U.S. business enterprises by foreign investors and the 
expansion of existing U.S. affiliates of foreign companies to establish 
new facilities where business is conducted. Foreign direct investment 
is defined as the ownership or control by one foreign person (foreign 
parent) of 10 percent or more of the voting securities of an 
incorporated U.S. business enterprise, or an equivalent interest of an 
unincorporated U.S. business enterprise, including a branch. All legal 
authorities, provisions, definitions, and requirements contained in 
Sec. Sec.  801.1 through 801.2 and Sec. Sec.  801.4 through 801.6 are 
applicable to this survey. Specific additional rules and regulations 
for the BE-13 survey are given in paragraphs (a) through (d) of this 
section. More detailed instructions are given on the report forms and 
instructions.
    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-13, Survey of New Foreign 
Direct Investment in the United States, contained herein, whether or 
not they are contacted by BEA. Also, a person, or their agent, who is 
contacted by BEA about reporting in this survey, either by sending them 
a report form or by written inquiry, must respond in writing pursuant 
to this section. This may be accomplished by filing the properly 
completed BE-13 report (BE-13A, BE-13B, BE-13D, BE-13E, or BE-13 Claim 
for Exemption).
    (b) Who must report. A BE-13 report is required of any U.S. 
business enterprise, except certain private funds, see exception in 
item (b.4.), in which:
    (1) A foreign direct investment in the United States relationship 
is created;
    (2) An existing U.S. affiliate of a foreign parent establishes a 
new U.S. business enterprise, expands its U.S. operations, or acquires 
a U.S. business enterprise, or;
    (3) BEA requests a cost update (Form BE-13E) for a U.S. business 
enterprise that previously filed Form BE-13B or BE-13D.
    (4) Certain private funds are exempt from reporting on the BE-13 
survey. If a U.S. business enterprise is a private

[[Page 43130]]

fund and does not own, directly or indirectly, 10 percent or more of 
another business enterprise that is not also a private fund or a 
holding company, it is not required to file any BE-13 report except to 
indicate exemption from the survey if contacted by BEA.
    (c) Forms to be filed. Depending on the type of investment 
transaction, U.S. affiliates would report their information on one of 
five forms--BE-13A, BE-13B, BE-13D, BE-13E, or BE-13 Claim for 
Exemption.
    (1) Form BE-13A--Report for a U.S. business enterprise when a 
foreign entity acquires a voting interest (directly, or indirectly 
through an existing U.S. affiliate) in that U.S. business enterprise 
including segments, operating units, or real estate; and
    (i) The total cost of the acquisition is greater than $3 million; 
and
    (ii) By this acquisition, the foreign entity now owns at least 10 
percent of the voting interest (directly, or indirectly through an 
existing U.S. affiliate) in the acquired U.S. business enterprise.
    (2) Form BE-13B--Report for a U.S. business enterprise when it is 
established by a foreign entity or by an existing U.S. affiliate of a 
foreign parent; and
    (i) The expected total cost to establish the new U.S. business 
enterprise is greater than $3 million; and
    (ii) The foreign entity owns at least 10 percent of the voting 
interest (directly, or indirectly through an existing U.S. affiliate) 
in the new U.S. business enterprise.
    (3) Form BE-13D--Report for an existing U.S. affiliate of a foreign 
parent when it expands its operations to include a new facility where 
business is conducted and the expected total cost of the expansion is 
greater than $3 million.
    (4) Form BE-13E--Report for a U.S. business enterprise that 
previously filed Form BE-13B or BE-13D. Form BE-13E collects updated 
cost information and will be collected annually until the establishment 
or expansion of the U.S. business enterprise is complete.
    (5) Form BE-13 Claim for Exemption--Report for a U.S. business 
enterprise that:
    (i) was contacted by BEA but does not meet the requirements for 
filing Forms BE-13A, BE-13B, or BE-13D; or
    (ii) whether or not contacted by BEA, met all requirements for 
filing Forms BE-13A, BE-13B, or BE-13D except the $3 million reporting 
threshold.
    (d) Due date. The BE-13 forms are due no later than 45 calendar 
days after the acquisition is completed, the new U.S. business 
enterprise is established, the expansion is begun, the cost update is 
requested, or a notification letter is received from BEA by a U.S. 
business enterprise that does not meet the filing requirements for the 
survey.

[FR Doc. 2016-15598 Filed 6-30-16; 8:45 am]
BILLING CODE 3510-06-P