Filing Fees for Notices of Certain Investments in the United States by Foreign Persons and Certain Transactions by Foreign Persons Involving Real Estate in the United States, 13586-13595 [2020-04641]
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13586
Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Proposed Rules
Issued on February 25, 2020.
Gaetano A. Sciortino,
Deputy Director for Strategic Initiatives,
Compliance & Airworthiness Division,
Aircraft Certification Service.
[FR Doc. 2020–04725 Filed 3–6–20; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE TREASURY
Office of Investment Security
31 CFR Parts 800 and 802
RIN 1505–AC65
Filing Fees for Notices of Certain
Investments in the United States by
Foreign Persons and Certain
Transactions by Foreign Persons
Involving Real Estate in the United
States
Office of Investment Security,
Department of the Treasury.
ACTION: Proposed rule.
AGENCY:
This proposed rule would
establish a fee for parties filing a
voluntary notice of certain transactions
for review by the Committee on Foreign
Investment in the United States
(CFIUS). In establishing a fee for such
notices, this proposed rule would
implement section 1723 of the Foreign
Investment Risk Review Modernization
Act of 2018, which amends section 721
of the Defense Production Act of 1950
to allow CFIUS to collect fees.
DATES: Written comments must be
received by April 8, 2020.
ADDRESSES: Written comments on this
proposed rule 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
Department of the Treasury (Treasury
Department) to make the comments
available to the public. Please note that
comments submitted through https://
www.regulations.gov will be public, and
can be viewed by members of the
public.
• Mail: Send to U.S. Department of
the Treasury, Attention: Laura Black,
Director of Investment Security Policy
and International Relations, 1500
Pennsylvania Avenue NW, Washington,
DC 20220.
Please submit comments only and
include your name and company name
(if any), and cite ‘‘Filing Fees for Notices
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SUMMARY:
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of Certain Investments in the United
States by Foreign Persons and Certain
Transactions By Foreign Persons
Involving Real Estate in the United
States’’ in all correspondence. In
general, the Treasury Department will
post all comments to https://
www.regulations.gov without change,
including any business or personal
information provided, such as names,
addresses, email addresses, or telephone
numbers. All comments received,
including attachments and other
supporting material, will be part of the
public record and subject to public
disclosure. You should only submit
information that you wish to make
publicly available.
FOR FURTHER INFORMATION CONTACT: For
questions about this proposed rule,
contact: Laura Black, Director of
Investment Security Policy and
International Relations; Meena R.
Sharma, Deputy Director of Investment
Security Policy and International
Relations; David Shogren, Senior Policy
Advisor; or James Harris, Senior Policy
Advisor, at U.S. Department of the
Treasury, 1500 Pennsylvania Avenue
NW, Washington, DC 20220; telephone:
(202) 622–3425; email: CFIUS.FIRRMA@
treasury.gov.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On August 13, 2018, the Foreign
Investment Risk Review Modernization
Act of 2018 (FIRRMA), Subtitle A of
Title XVII of Public Law 115–232, 132
Stat. 2173, was enacted. FIRRMA
amends section 721 (section 721) of the
Defense Production Act of 1950 (DPA),
which delineates the authorities and
jurisdiction of the Committee on
Foreign Investment in the United States
(CFIUS or the Committee). Executive
Order 13456, 73 FR 4677 (Jan. 23, 2008),
directs the Secretary of the Treasury to
issue regulations implementing section
721. This proposed rule is being issued
pursuant to that authority.
FIRRMA maintains the Committee’s
jurisdiction over any transaction which
could result in foreign control of any
U.S. business, and it broadens the
authorities of the President and CFIUS
under section 721 to review and to take
action to address any national security
concerns arising from certain noncontrolling investments and real estate
transactions. FIRRMA refers to the
transactions over which CFIUS has
jurisdiction as ‘‘covered transactions.’’
This statutory reference is implemented
in the final rule for 31 CFR part 800 at
85 FR 3112 (Part 800 rule) as the
definition of ‘‘covered transaction’’ and
in the final rule for 31 CFR part 802 at
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85 FR 3158 (Part 802 rule) as the
definition of ‘‘covered real estate
transaction.’’ FIRRMA also modernizes
CFIUS’s processes to better enable
timely and effective reviews of
transactions falling under its
jurisdiction, including by introducing
the concept of a declaration—an
abbreviated notification to which the
Committee must respond within a 30day assessment period—as an
alternative to a voluntary notice, which
has been the traditional means of filing
a transaction with CFIUS.
FIRRMA further provides that ‘‘the
Committee may assess and collect a fee
in an amount determined by the
Committee in regulations . . . with
respect to each covered transaction for
which a written notice is submitted to
the Committee.’’ FIRRMA, section 1723.
FIRRMA directs that the fee be based on
the value of the transaction, taking
various factors into account. It also
provides that such fees may not exceed
an amount equal to the lesser of one
percent of the value of the transaction,
or $300,000, adjusted annually for
inflation.
On January 17, 2020, the Treasury
Department published two rules
implementing FIRRMA. The Part 800
rule continues CFIUS’s jurisdiction over
transactions that could result in control
of a U.S. business. It also implements
the provisions of FIRRMA relating to
CFIUS’s new jurisdiction to review
certain non-controlling investments in a
U.S. business that afford a foreign
person specified access to information
in the possession of, rights in, or
involvement in the substantive
decisionmaking of U.S. businesses with
certain activities relating to critical
technologies, critical infrastructure, or
sensitive personal data. In addition, the
Part 800 rule makes certain changes to
CFIUS’s existing process and
procedures, including allowing parties
to submit any transaction to CFIUS
through a declaration. The Part 802 rule
implements the provisions of FIRRMA
relating to CFIUS’s new jurisdiction to
review the purchase or lease by, or
concession to, a foreign person of
certain real estate in the United States.
Those two rules did not include any
provisions regarding filing fees.
This proposed rule would establish a
filing fee for ‘‘covered transactions’’
under the Part 800 rule and ‘‘covered
real estate transactions’’ under the Part
802 rule that are filed with the
Committee as voluntary written notices.
The proposed fee structure and amounts
are the same for the Part 800 rule and
the Part 802 rule. In accordance with
FIRRMA, there is no fee for any
declaration submitted to the Committee,
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or for any unilateral review of a
transaction based on an agency notice
filed by any member of the Committee.
However, the filing fee does apply to
notices filed by parties to a covered
transaction or a covered real estate
transaction after the Committee has
completed its assessment of a
declaration and taken action under
§ 800.407 or § 802.405 (i.e., in cases
where the Committee requests that the
parties file a written notice and in cases
where the Committee informs parties
that it is not able to conclude action and
that the parties may file a written
notice). The filing fee also applies where
parties choose to notify CFIUS of a
transaction subject to § 800.401 through
a notice instead of a declaration.
The Treasury Department has
proposed a fee structure that it believes
will not discourage filings and will
allow parties to continue the practice of
determining whether to file a voluntary
written notice based on an evaluation of
the facts and circumstances of the
transaction. The proposed fees for
notices are based on the value of the
notified transaction, with the smallest
transactions (i.e., those with a value of
less than $500,000) not being assessed a
filing fee. For transactions with values
equal to or exceeding $500,000, the
filing fee is based on a tiered approach,
as follows:
• Where the value of the transaction
is equal to or greater than $500,000 but
less than $5,000,000, a filing fee of $750
is assessed;
• Where the value of the transaction
is equal to or greater than $5,000,000
but less than $50,000,000, a filing fee of
$7,500 is assessed;
• Where the value of the transaction
is equal to or greater than $50,000,000
but less than $250,000,000, a filing fee
of $75,000 is assessed;
• Where the value of the transaction
is equal to or greater than $250,000,000
but less than $750,000,000, a filing fee
of $150,000 is assessed; and
• Where the value of the transaction
is equal to or greater than $750,000,000,
a filing fee of $300,000 is assessed.
The applicable fee must be paid to the
Treasury Department prior to the Staff
Chairperson accepting a notice for
review, except in certain limited
circumstances where the Staff
Chairperson waives the filing fee.
Payment instructions will be available
on the Treasury Department website
prior to the effective date of the final
rule implementing the filing fees.
The proposed rule describes how a
transaction’s value is determined, the
manner of payment, circumstances in
which the Treasury Department may
issue a refund, when an additional fee
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may be required in the event of the
withdrawal and refiling of a notice, and
the consequences of fee underpayment.
II. Methodology for Establishing the Fee
Structure
A. Consideration of Various Factors
In establishing a filing fee, FIRRMA
requires the Committee to take into
account the effect of the fee on small
business concerns, the expenses of the
Committee associated with conducting
activities under section 721, the effect of
the fee on foreign investment, and any
other matters the Committee considers
appropriate.
The Treasury Department and CFIUS
member agencies considered the effect
of a fee on small businesses, and a more
detailed discussion of the potential
impact of the proposed fee structure on
small businesses is included in the
Regulatory Flexibility Act discussion,
below. The proposed fee structure
accounts for and attempts to minimize
the impact on small business concerns
by not assessing a fee on transactions
that are valued at less than $500,000.
Additionally, the fee for transactions
valued between $500,000 and
$5,000,000 is set at only $750. Should
the filing fee pose a concern to a small
business, the declaration process, for
which there is no filing fee, is available
for any transaction. Furthermore, there
is the possibility, which is not intended
to be used frequently, for the Staff
Chairperson to waive the filing fee in
whole or in part if extraordinary
circumstances relating to national
security warrant.
The Treasury Department also
considered the expenses of the
Committee associated with carrying out
section 721. As noted above, the
Committee’s jurisdiction has expanded
through the enactment of FIRRMA. The
Treasury Department and CFIUS
member agencies are increasing
personnel and making infrastructure
and other resource expenditures to
implement section 721. In light of this,
the Treasury Department determined
that the proposed fee amounts were
appropriate and has estimated that the
fees would allow the Committee to
recoup a portion of the costs associated
with, but would not exceed the cost of,
administering section 721. The Treasury
Department will monitor the amount of
fees generated and administration costs
and will adjust fees as needed,
including through new rule making, as
appropriate.
The Treasury Department considered
alternatives to the proposed fee
structure in seeking to assess the impact
on foreign investment. In particular, the
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Treasury Department considered setting
a fixed or variable rate to be applied to
all notices, as well as a uniform fixed
fee amount for all notices—before
determining that the proposal in this
rule was the most appropriate based on
various factors including
proportionality, administration, clarity,
and impact on parties’ decision whether
to file a notice. The proposed fees
represent only a small amount (0.15
percent or less) of the overall value of
the transactions for which a fee will be
assessed, and the Treasury Department
does not believe the proposed fees will
discourage foreign investment in the
United States or the filing of written
notices with the Committee. However,
the Treasury Department is interested in
learning from the public about the
impact that filing fees may have on a
party’s decision to engage in a
transaction and whether to seek safe
harbor through the submission of a
voluntary notice.
B. Tiered Fixed-Fee Proposal
The proposed rule sets forth a tiered,
fixed-fee schedule based on transaction
value. This structure allows the
Treasury Department to set the fees
consistent with the requirements in
FIRRMA and is informed by the nature
and value of transactions that have
typically been filed as notices.
The tiers set a generally consistent fee
rate relative to the value of the
transaction. Because parties must pay
fees prior to the Staff Chairperson
accepting a notice for review, the fee
tiers are structured in a manner that
allows the required fee for a transaction
that has not yet closed to be determined
with relative certainty. This structure
was intended to achieve the Treasury
Department’s goals of clarity and
administrative efficiency.
The Treasury Department expects that
the filing fee will represent a relatively
small proportion of the total transaction
costs associated with any given
transaction. In each case, the fee amount
set in the proposed rule is no more than
0.15 percent of the overall transaction
value. If, however, the filing fee is
burdensome in the context of a
particular transaction, parties can
consider filing a declaration instead of
a notice, which does not require
payment of a fee.
The Treasury Department is interested
in comments from the public on the
impact of the proposed tiered fixed-fee
structure and whether additional tiers or
additional features should be
considered.
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C. Calculating Transaction Value
The proposed rule describes with
particularity how to determine the value
of a transaction for purposes of
determining the applicable fee. This
determination is relevant only for
calculating the applicable filing fee and
is not determinative of the Committee’s
assessment as to what constitutes the
‘‘covered transaction’’ or ‘‘covered real
estate transaction’’ subject to its review.
The Treasury Department anticipates
that, in most instances, determining the
value of the transaction will be
straightforward, based on the amount of
money the foreign person is paying in
the transaction.
Generally, for transactions subject to
the Part 800 rule and for purchases of
real estate subject to the Part 802 rule,
the value of a transaction will be the
total value of all consideration that has
been or will be paid in the context of the
transaction by or on behalf of the foreign
person who is a party to the transaction,
including cash, assets, shares or other
ownership interests, debt forgiveness,
services, or other in-kind consideration.
Where a covered transaction is a part of
a transaction that includes one or more
non-U.S. businesses, the total value of
the transaction will generally be
assessed based on the global value of the
transaction encompassing both U.S. and
non-U.S. businesses. There is an
exception for transactions under the
Part 800 rule where the value of the
transaction is equal to or greater than
$5,000,000, but the value of the interests
or rights acquired in the U.S. business
is less than $5,000,000. In such cases,
the fee will be $750. This exception was
intended to minimize any potential
disincentives the fee may pose to parties
filing a notice with CFIUS, where the
target company has a limited presence
in the United States. The Treasury
Department is interested in comments
on whether a similar approach should
be taken for transactions under the Part
802 rule, where the value of the covered
real estate is relatively small in the
context of the overall transaction.
The proposed rule also specifies how
the transaction value for leases and
concessions under the Part 802 rule will
be determined. Specifically, leases and
concessions would be valued according
to the sum of the consideration,
including lease inducements, fixed
payments, certain variable lease
payments, and other types of
identifiable consideration applicable to
real estate transactions. Within the
general categories of real estate
transactions, certain variations in terms
of valuation, payment structures, and
other consideration will impact the fee
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calculation. The Treasury Department
welcomes comments on the approach
taken in the proposed rule and whether
and how the rule could be further
tailored to address industry practices.
The Treasury Department recognizes
that, for some transactions,
consideration may be paid in securities
or other non-cash assets, or even in
services or other in-kind consideration,
and the proposed rule addresses these
scenarios. For transactions where the
consideration is a security that is traded
on a national securities exchange, the
value of the transaction is calculated
based on the closing price on the
national securities exchange on which
the securities are primarily listed on the
trading day immediately prior to the
date the parties file a notice with the
Committee. If the security was not
traded on that day, the last published
closing price would be used. Where the
consideration includes other non-cash
assets, interests, or services or other inkind consideration, the value of the
consideration would be the fair market
value as of the date the parties file the
notice. Where the transaction is a
lending transaction, the value of the
consideration is the cash value of the
loan or similar financing arrangement.
Additionally, where the transaction
arises from the conversion of a
contingent equity interest previously
acquired by a foreign person, the value
of the transaction would include the
consideration that was paid by or on
behalf of the foreign person to initially
acquire the contingent equity interest in
addition to any other consideration.
In the rare circumstance in which the
consideration for a transaction has not
been determined, the value of the
transaction would be based on the fair
market value of the assets or real estate
being acquired in the transaction as of
the date the parties file the notice, or the
fair market value of the U.S. business
being merged or contributed. The
proposed rule includes a definition of
fair market value, which tracks the basic
definition described in the Financial
Accounting Standards Board Statement
No. 157.
In order to assist the parties and the
Committee in determining the
appropriate fee amount associated with
a transaction, the proposed rule also
makes modest revisions to the content
requirements for joint voluntary notices
under the Part 800 rule and the Part 802
rule. Specifically, the proposed rule
adds a requirement that, along with a
good faith estimate of the net value of
the interest acquired in the U.S.
business by the foreign person, the
parties provide the Committee with the
value of the transaction and an
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explanation of the methodology used to
determine such valuation and the
applicable fee.
Additionally, as discussed above, the
proposed fee rule for Part 800 provides
that where a covered transaction is part
of a transaction valued at or greater than
$5,000,000 that includes one or more
non-U.S. businesses, but the value of the
interests or rights acquired in the U.S.
business is less than $5,000,000, the fee
will be $750, regardless of the value of
the overall transaction. If the value of
the U.S. business equals or exceeds
$5,000,000, then the fee will be
determined based on the total value of
the overall transaction.
D. Other Matters—Timing and Refunds
The proposed rule requires that
parties pay any applicable fee at the
time they file a notice with the
Committee. The Staff Chairperson may
decide not to accept a notice, and the
Committee may not begin reviewing a
notice, until the Treasury Department
has received the applicable fee. Where
the Staff Chairperson accepts a notice
but later determines that the fee was
underpaid, prior to rejecting the notice
the Staff Chairperson will inform the
parties in writing of the insufficiency of
payment and provide the parties three
business days to pay the remainder of
the filing fee. In addition, no waiver will
be implied, even where the Staff
Chairperson does not reject a voluntary
notice for failure to pay the full amount
of the filing fee.
Furthermore, while the Treasury
Department will not, as a general matter,
provide refunds of filing fees, if it
determines that a notified transaction is
not a covered transaction or a covered
real estate transaction, as relevant, it
will refund the filing fee to the party
that made the payment.
The proposed rule permits parties to
petition the Staff Chairperson to seek a
partial refund of fees, if the parties can
demonstrate that a party or the parties
to a transaction paid a filing fee in an
amount greater than required at the time
of filing. The Treasury Department
anticipates that such partial refunds will
be made infrequently due to the tiered
fee structure. Additionally, the Staff
Chairperson may waive the fee, in
whole or in part, if the Staff Chairperson
determines that extraordinary
circumstances relating to national
security warrant such a waiver.
Finally, the proposed rule does not
require parties to pay an additional fee
where the Committee allows the parties
to withdraw and re-file a notice, unless
the Staff Chairperson determines that a
material change to the transaction has
occurred, or a material inaccuracy or
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omission was made by the parties in
information provided to the Committee,
that requires the Committee to consider
new information, in which case the Staff
Chairperson will inform the parties in
writing.
III. Rulemaking Requirements
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Executive Order 12866
These regulations are not subject to
the general requirements of Executive
Order 12866, which covers review of
regulations by the Office of Information
and Regulatory Affairs in the Office of
Management and Budget (OMB),
because they relate 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 7(c) of the April 11, 2018
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 this notice of proposed
rulemaking has been submitted to the
OMB for review in accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)) under control number
1505–0121.
Comments on the collection of
information should be sent to the Office
of Management and Budget, Attn: Desk
Officer for the Department of the
Treasury, Office of Information and
Regulatory Affairs, Washington, DC
20503, or via email to OIRA_
Submission@omb.eop.gov, with copies
to Laura Black, Director of Investment
Security Policy and International
Relations, U.S. Department of the
Treasury, 1500 Pennsylvania Avenue
NW, Washington, DC 20220. Comments
on the collection of information should
be received by May 8, 2020.
In accordance with 5 CFR
1320.8(d)(1), the Treasury Department is
soliciting comments from members of
the public concerning this collection of
information to:
(1) Evaluate 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;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
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(4) Minimize the burden of the
collection of information on those who
are to respond; including through the
use of appropriate automated collection
techniques or other forms of information
technology.
The information collection in this
proposed rule is in § 800.502(c)(1)(viii)
and § 802.502(b)(1)(ix). Specifically, the
proposed rule would add a requirement
that, along with the existing
requirement for a good faith
approximation of value of the interest
acquired in the U.S. business or covered
real estate by the foreign person, the
parties provide the Committee with the
value of the transaction and an
explanation of the methodology used to
determine such valuation and the
applicable fee. This proposal has been
submitted to OMB as a revision to the
collection of information approved
under 1505–0121 without a change in
the total burden hours. The notice
requirement was previously approved
under the Paperwork Reduction Act
with a per respondent burden of 130
hours. This burden should account for
the modest increase in reporting under
proposed § 800.502(c)(1)(viii) and
§ 802.502(b)(1)(ix); however, comments
are invited from members of the public
who believe the burden hours should be
revised.
An agency may not conduct or
sponsor and an individual 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 (5
U.S.C. 601 et seq.) (RFA) generally
requires an agency to prepare an initial
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 Procedures Act (5 U.S.C.
553) (APA), 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 another law requiring the publication
of a general notice of proposed
rulemaking, the RFA does not apply.
The proposed rule implements
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
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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 the acquisition, merger, or
takeover of, or certain other investments
in, a U.S. business by a foreign person,
and certain real estate transactions by a
foreign person, 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 RFA
applies to this rulemaking, the Secretary
of the Treasury certifies that this
proposed rule, if adopted, will not have
a significant economic impact on a
substantial number of small entities.
The proposed rule would implement
a fee for filing a notice of a covered
transaction and a covered real estate
transaction, as those terms are defined
in Part 800 and Part 802 of CFIUS’s
regulations. The Treasury Department
attempted to minimize the burden of
this fee requirement on small entities.
For example, a transaction valued at less
than $500,000 will have no associated
filing fee. Additionally, while the
Treasury Department has proposed a
$750 fee for transactions valued at or
greater than $500,000 but less than
$5,000,000, which may affect small
entities as they are defined by the Small
Business Administration (SBA), the fee
is relatively small in real terms. At that
level, the administrative fee represents
only 0.15 percent of the value of the
smallest dollar valuation for a
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transaction that would incur a fee
($500,000).
Moreover, the fee rules will not
impact a ‘‘substantial number’’ of small
entities. There is no single source for
information on the number of small U.S.
businesses that receive foreign
investment (direct or indirect),
including those involved with critical
technologies, critical infrastructure, or
sensitive personal data, such that they
would be directly impacted by the Part
800 rule. However, the Bureau of
Economic Analysis (BEA) within the
Department of Commerce collects, on an
annual basis, data on new foreign direct
investment in the United States through
its Survey of New Foreign Direct
Investment in the United States (Form
BE-13). While these data are selfreported, and include only direct
investments in U.S. businesses in which
the foreign person acquires at least 10
percent of the voting shares (and
consequently, do not capture
investments below 10 percent, which
may nevertheless be covered
transactions), they nonetheless provide
relevant information on a category of
U.S. businesses that receive foreign
investment, some of which may be
covered by the proposed rule.
According to the BEA, in 2018, the
most current year for which data is
available, foreign persons obtained at
least a 10 percent voting share in 832
U.S. businesses. See U.S. Bureau of
Economic Analysis, ‘‘Number of
Investments Initiated in 2018,
Distribution of Planned Total
Expenditures, Size by Type of
Investment,’’ available at https://
apps.bea.gov/international/xls/Table1514-15-16-17-18.xls (last visited March 2,
2020). The BEA only reports the general
size of the investment transaction, not
the type of the U.S. business involved,
nor whether the U.S. business is
considered a ‘‘small business’’ by the
SBA, which defines small businesses
based on annual revenue or number of
employees. The smallest foreign
investment transactions that the BEA
reports are those with a dollar value
below $50,000,000. While not all U.S.
businesses receiving a foreign
investment of less than $50,000,000 are
considered ‘‘small’’ for the purposes of
the RFA, many might be, and the
number of U.S. businesses receiving
foreign investments of less than
$50,000,000 can serve as a proxy for the
number of transactions involving small
U.S. businesses that might be subject to
CFIUS’s jurisdiction.
Of the above mentioned 832 U.S.
businesses receiving foreign investment
in 2018, 576 were involved in
transactions valued at less than
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$50,000,000. Although this figure is
under inclusive because it does not
capture all transactions that could
potentially fall under the rule, it also is
over inclusive because it is not limited
to any particular type of U.S. business.
The Treasury Department believes the
figure of 576 is the best estimate based
on the available data of the number of
small U.S. businesses that may be
impacted by this rule, but for the
reasons set forth below, the impact on
those small U.S. businesses will not be
significant.
According to the SBA, there were
approximately 30,200,000 small
businesses (defined as ‘‘firms employing
fewer than 500 employees’’) in the
United States as of 2018. See ‘‘2018
Small Business Profile,’’ available at
https://www.sba.gov/sites/default/files/
advocacy/2018-Small-Business-ProfilesUS.pdf (last visited March 2, 2020). If
approximately 600 small U.S.
businesses will be potentially impacted
by this rule, then the rule may
potentially impact less than one percent
of all small U.S. businesses.
There is no single source for
information on the number of small U.S.
businesses that would be involved in
some way in the purchase or lease by,
or concession to a foreign person of real
estate that could be covered under the
Part 802 rule. However, the Treasury
Department anticipates only 350 real
estate transactions, out of the thousands
or more of the annual number of real
estate transactions in the United States,
will be the subject of a declaration or
notice of a covered real estate
transaction. Further background on this
estimate was included in the estimate of
burden hours submitted to OMB in
accordance with the Paperwork
Reduction Act under Document Control
Number 1505–0121.
Additionally, as required by FIRRMA,
the rule takes into account and attempts
to minimize the impact it may have on
small U.S. businesses. For example, the
rule contains no fee for transactions
valued at less than $500,000. In
addition, the fee is only $750 where the
value of the transaction is equal to or
greater than $500,000 but less than
$5,000,000, and the fee is $7,500 where
the value of the transaction is equal to
or greater than $5,000,000 but less than
$50,000,000. Therefore, to the extent
that small U.S. businesses will incur a
fee for a notice, that fee will represent
only a fraction of the value of the
transaction to the parties. The Treasury
Department does not expect this filing
fee rule to change the estimate of burden
hours for completing notices which was
previously submitted to OMB in
accordance with the Paperwork
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Reduction Act under Document Control
Number 1505–0121.
Also, as discussed above, the fee is
only incurred when parties file a notice
of a transaction with the Committee.
The Treasury Department has not
proposed any fees to submit a
declaration of a transaction, and under
the Part 800 rule and Part 802 rule,
parties may submit a declaration of any
covered transaction or any covered real
estate transaction. Declarations will take
less time and incur less cost for parties
to complete. Additional information
about declarations, including the
procedures to file them and their
content requirements, is available in the
final CFIUS rules at 85 FR 3112 (Jan. 17,
2020) and 85 FR 3158 (Jan. 17, 2020).
Accordingly, for the reasons stated
above, the Secretary of the Treasury
certifies that the proposed rule, if
implemented, will not have a
‘‘significant economic impact on a
substantial number of small entities,’’ 5
U.S.C. 605(b). Nevertheless, the
Treasury Department is interested in
any comments on how the proposed
rule would affect small entities.
List of Subjects
31 CFR Part 800
Foreign investments in the United
States, Investments, Investment
companies, National defense, Fees.
31 CFR Part 802
Foreign investments in the United
States, Federal buildings and facilities,
Government property, Investigations,
Investments, Investment companies,
Land sales, National defense, Public
lands, Real property acquisition,
Reporting and Recordkeeping
requirements, Fees.
For the reasons set forth in the
preamble, the Treasury Department
proposes to amend 31 CFR parts 800
and 802 as follows:
PART 800—REGULATIONS
PERTAINING TO CERTAIN
INVESTMENTS IN THE UNITED
STATES BY FOREIGN PERSONS
1. The authority citation for part 800
continues to read:
■
Authority: 50 U.S.C. 4565; E.O. 11858, as
amended, 73 FR 4677.
Subpart E—Notices
§ 800.501
[Amended]
2. Amend § 800.501:
a. In paragraph (a) by adding ‘‘, and
paying the fee required under subpart K
of this part’’ after ‘‘including the
certification required under paragraph
(l) of that section’’; and
■
■
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b. In paragraph (f) by adding ‘‘, and
payment of the fee required under
subpart K of this part,’’ after ‘‘including
the certification required by
§ 800.502(l)’’.
■ 3. Amend § 800.502 by revising
paragraph (c)(1)(viii) to read as follows:
■
§ 800.502
Contents of voluntary notices.
*
*
*
*
*
(c) * * *
(1) * * *
(viii)(A) The value of the transaction
in U.S. dollars, as determined pursuant
to § 800.1103, and the parties’
assessment of the applicable fee due
under § 800.1101, including an
explanation of the methodology used to
determine such valuation and
applicable fee; and
(B) If different than the value of the
transaction provided in paragraph
(c)(1)(viii)(A) of this section, a good
faith approximation of the net value of
the interest acquired in the U.S.
business in U.S. dollars, as of the date
of the notice.
*
*
*
*
*
■ 4. Amend § 800.503:
■ a. In paragraph (a)(1), by removing the
word ‘‘and’’;
■ b. By redesignating paragraph (a)(2) as
paragraph (a)(3); and
■ c. By adding new paragraph (a)(2).
The addition reads as follows:
§ 800.503
period.
Beginning of 45-day review
§ 800.504 Deferral, rejection, or disposition
of certain voluntary notices.
(a) * * *
(3) Reject any voluntary notice upon
determining that the filing fee paid by
the parties was insufficient under
subpart K of this part, subject to
§ 800.1108.
*
*
*
*
*
■ 7. Add subpart K to read as follows:
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800.1101
800.1102
800.1103
800.1104
800.1105
800.1106
800.1107
Amount of fee.
Timing of payment.
Valuation.
Manner of payment.
Refunds.
Waiver.
Resubmissions.
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Rejection of voluntary notice.
Subpart K—Filing Fees
§ 800.1101
Amount of fee.
The parties filing a voluntary notice of
a transaction with the Committee under
§ 800.501(a) shall pay a filing fee as
follows:
(a) Where the value of the transaction
is less than $500,000: No fee;
(b) Where the value of the transaction
is equal to or greater than $500,000 but
less than $5,000,000: $750;
(c) Where the value of the transaction
is equal to or greater than $5,000,000
but less than $50,000,000: $7,500;
(d) Where the value of the transaction
is equal to or greater than $50,000,000
but less than $250,000,000: $75,000;
(e) Where the value of the transaction
is equal to or greater than $250,000,000
but less than $750,000,000: $150,000;
(f) Where the value of the transaction
is equal to or greater than $750,000,000:
$300,000.
§ 800.1102
Timing of payment.
Subject to §§ 800.1106 through
800.1108, the Staff Chairperson shall
not accept a voluntary notice under
§ 800.503(a) until payment of any fee
required under this section is received
by the Department of the Treasury in the
manner specified on the Committee’s
section of the Department of the
Treasury website.
§ 800.1103
(a) * * *
(2) Confirmed that the applicable fee
required under subpart K of this part
has been paid, or waived; and
*
*
*
*
*
■ 6. Amend § 800.504 by redesignating
paragraphs (a)(3) and (4) as paragraphs
(a)(4) and (5), respectively, and adding
new paragraph (a)(3) to read as follows:
Subpart K—Filing Fees
800.1108
Valuation.
(a) Except as provided in paragraph
(c) of this section, the value of the
transaction for purposes of determining
the required fee amount in this section
means the total value of all
consideration that has been or will be
provided in the context of the
transaction by or on behalf of the foreign
person that is a party to the transaction,
including cash, assets, shares or other
ownership interests, debt forgiveness, or
services or other in-kind consideration.
(b) Determining the value of
consideration:
(1) Where the consideration includes
securities traded on a national securities
exchange, the value of the securities is
the closing price on the national
securities exchange on which the
securities are primarily traded on the
trading day immediately prior to the
date the parties file the voluntary notice
with the Committee pursuant to
§ 800.501(a), or if the securities were not
traded on that day, the last published
closing price.
(2) Where the consideration includes
other non-cash assets, services,
interests, or in-kind consideration, the
value of the assets, services, interests, or
in-kind consideration is their fair
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13591
market value as of the date the parties
file the notice.
(3) Where the transaction is a lending
transaction, the value of the
consideration is the cash value of the
loan, or similar financing arrangement,
made available or provided by or on
behalf of the foreign person that is a
party to the transaction.
(4) Where the transaction arises from
the conversion of a contingent equity
interest previously acquired by a foreign
person that is a party to the transaction,
the value of the transaction includes the
consideration that was paid by or on
behalf of the foreign person to initially
acquire the contingent equity interest, in
addition to any other consideration paid
in connection with the conversion.
(c) Exceptions:
(1) Where the consideration to be paid
by the foreign person has not been, or
cannot reasonably be determined as of
the date the parties file the notice, the
value of the transaction is the fair
market value of the assets being
acquired in the transaction as of the date
the parties file the notice.
Note to § 800.1103(c)(1): The
consideration amount may be
determined notwithstanding minor
standard adjustments that are to be
made at closing.
(2) Where the transaction involves a
merger or the contribution of a U.S.
business to a joint venture, the value of
the transaction is the fair market value
of the U.S. business being merged or
contributed.
(3) Where the value of a transaction is
$5,000,000 or more, but the transaction
includes one or more non-U.S.
businesses, and the value of the
interests or rights acquired in the U.S.
business is less than $5,000,000, the
filing fee under § 800.1101(b) is
applicable. The value of the U.S.
business, for purposes of this paragraph,
is the fair market value of the assets of
the U.S. business.
(d) Fair market value means the price
that would be received in exchange for
selling an asset or interest, or paid to
receive a service or to transfer liability,
in an orderly transaction between
market participants.
(1) In determining the fair market
value of assets or interests, parties shall
make a good faith estimate and
generally may rely on the last valuation
of the assets as presented in financial
statements prepared in accordance with
generally accepted accounting
principles (GAAP) or other widely
recognized accounting principles, such
as the International Financial Reporting
Standards (IFRS), or the valuation of an
independent appraiser; provided,
however, that if no valuation has
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occurred within the prior two fiscal
quarters, or if there have been
significant changes to the fair market
value since the last valuation, the
parties shall make a good faith estimate
as of the filing date, or, if the parties are
filing after the completion of the
transaction, the date that the transaction
was completed.
(2) In determining the fair market
value of services, the parties may rely
upon the value of services determined
by the parties as set forth in an executed
written agreement, or make an estimate
as of the date of filing based upon rates
charged to third parties or upon recent
industry reports or other sources of
comparable commercial data; provided,
however, if such sources are
unavailable, the parties shall make a
good faith estimate. If the parties are
filing after completion of the
transaction, the parties shall make an
estimate of the fair market value as of
the date the transaction was completed.
(3) The Staff Chairperson is not bound
by the parties’ characterization of the
transaction and its value or the parties’
good faith approximation provided to
the Committee pursuant to
§ 800.502(c)(1)(viii).
(e) Examples:
(1) Example 1. Corporation A, a
foreign person, proposes to acquire all
of the issued and outstanding shares of
Corporation B, a U.S. business, in
exchange for $100,000,000 in cash.
Assuming no other relevant facts, the
value of the transaction is $100,000,000,
and the filing fee is $75,000.
(2) Example 2. Corporation A, a
foreign person, proposes to acquire all
of the issued and outstanding shares of
Corporation B, a U.S. business, in a twofor-one stock swap transaction whereby
a holder of a share of Corporation B’s
stock is entitled to receive two shares of
Corporation A’s stock. Corporation A’s
stock is listed on the NASDAQ, a
national securities exchange. In
aggregate, the holders of Corporation B’s
stock will receive 10,000,000 shares of
Corporation A’s stock in the transaction.
On the trading day immediately prior to
the filing of the joint voluntary notice,
the closing price of Corporation A’s
stock on NASDAQ was $20 per share.
Assuming no other relevant facts, the
value of the transaction is $200,000,000,
and the filing fee is $75,000.
(3) Example 3. Corporation B, a U.S.
business, is issuing new shares that will
represent 50 percent of its issued and
outstanding shares. Corporation A, a
foreign person, proposes to acquire
these shares. As consideration,
Corporation A will contribute to
Corporation X certain inventory,
machines, and other non-cash assets.
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The parties to the transaction estimate
in good faith, based on the most recent
quarterly financial statements of
Corporation A, which were prepared in
accordance with GAAP, that the fair
market value of the assets is
$40,000,000. Assuming no other
relevant facts, the value of the
transaction is $40,000,000, and the
filing fee is $7,500.
(4) Example 4. Corporation A and
Corporation B are establishing a joint
venture, JV Corp., which will be
controlled by Corporation B, a foreign
person. Corporation A contributes a U.S.
business, the fair market value of which
is $150,000,000, to JV Corp. Corporation
B contributes $150,000,000 in cash to JV
Corp. The value of the transaction is
$150,000,000, which is equal to the
value of the U.S. business being
contributed. Assuming no other relevant
facts, the filing fee is $75,000.
(5) Example 5. Corporation A, a
foreign person, enters into a stock
purchase agreement with Person Z to
acquire 100 percent of the issued and
outstanding shares of Corporation B, a
U.S. business. The value of the
consideration has not been determined
because it will only be payable once
Corporation B achieves certain
development and sales milestones, and
it will be 10 percent of Corporation B’s
revenue over a future five-year period.
The parties estimate in good faith that
the fair market value of Corporation B
is $30,000,000 based on a number of
factors, including application of wellknown accounting standards such as
Financial Accounting Standards Board
Statement 157, a recent valuation
conducted by a third-party auditor, and
a proposal to acquire Corporation B
made by another bidder for
approximately $30,000,000 in cash.
Assuming no other relevant facts, the
value of the transaction is $30,000,000,
and the filing fee is $7,500.
(6) Example 6. Corporation A, a
foreign person, proposes to acquire 100
percent of the equity interest of
Corporation B, a foreign person, for
$100,000,000. Corporation B has
subsidiaries in several countries,
including Corporation C, a U.S.
business. The fair market value of
Corporation C’s assets is $1,000,000.
Assuming no other relevant facts, under
paragraph (d)(3) of this section, a $750
filing fee is required.
(f) Timing rule for calculation of filing
fee:
(1) Where a transaction will be
effectuated in multiple phases or
involves the acquisition of contingent
equity interests, the value of the
transaction is the total value of the
transaction including the multiple
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phases or contingent equity interests, if
such total value can be reasonably
determined, the conditions that lead to
completion will occur imminently, and
the conditions are within the control of
the acquiring party.
(2) Example: Corporation A, a foreign
person, proposes to acquire Corporation
B, a U.S. business. The transaction will
be effectuated in two phases. First,
Corporation A will acquire 50 percent of
the voting interest of Corporation B in
exchange for $30,000,000 (Phase 1).
Two months later, Corporation A will
have the option to acquire the remaining
50 percent of the voting interest of
Corporation B in exchange for another
$30,000,000 (Phase 2). The option to
convert is imminent, the option to
acquire the remaining voting interest is
in the control of Corporation A, and the
amount of voting interest acquired can
be reasonably determined. The value of
consideration of Phase 2 is part of the
consideration of the transaction.
Assuming no other relevant facts, the
value of the consideration is
$60,000,000 (the total consideration for
both stages), and the filing fee is
$75,000.
(g) The determination of the value of
the transaction for purposes of
calculating the filing fee in no way
limits the Committee’s jurisdiction or its
authority to review, investigate,
mitigate, or take any other action
regarding any covered transaction.
§ 800.1104
Manner of payment.
Parties to a transaction must pay any
filing fee by electronic payment. The
filing fee must be paid in U.S. dollars.
Instructions for paying filing fees are
available on the Committee’s section of
the Department of the Treasury website.
§ 800.1105
Refunds.
(a) Except as provided in paragraphs
(b) and (c) of this section, the
Department of the Treasury shall not
refund a filing fee in whole or in part.
(b) If the Committee determines that
the transaction is not a covered
transaction, the filing fee shall be
refunded.
(c) In response to a petition by a party,
if the Staff Chairperson determines,
based on the information and
representations contained in the
voluntary notice, as well as any other
information provided by the parties,
that a party or the parties to a
transaction paid a filing fee in an
amount greater than required at the time
of filing, the Department of the Treasury
shall refund the amount of overpayment
to the party or parties who paid the
filing fee.
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§ 800.1106
Waiver.
If the Staff Chairperson determines
that extraordinary circumstances
relating to national security warrant, the
Staff Chairperson may waive the filing
fee in whole or in part and will notify
the parties in writing. No waiver shall
be implied, even where the Staff
Chairperson does not reject a voluntary
notice under § 800.1108 for failure to
pay the filing fee.
§ 800.1107
Resubmissions.
The parties to a transaction shall not
be required to pay an additional filing
fee in the event that the Staff
Chairperson permits the parties to
withdraw and resubmit a notice
pursuant to § 800.509(c)(2), unless the
Staff Chairperson determines that a
material change to the transaction has
occurred, or a material inaccuracy or
omission was made by the parties in
information provided to the Committee,
that requires the Committee to consider
new information, in which case the Staff
Chairperson will inform the parties in
writing.
§ 800.1108
Rejection of voluntary notice.
The Staff Chairperson may reject a
voluntary notice pursuant to
§ 800.504(a) upon a determination that
the amount of the filing fee paid by the
parties was insufficient under this
section. Prior to rejecting a notice under
this paragraph, the Staff Chairperson
shall inform the parties in writing of the
insufficiency of payment and provide
the parties three business days to pay
the remainder of the filing fee. If the
Staff Chairperson does not reject a
voluntary notice pursuant to
§ 800.504(a) upon a determination that
the amount of the filing fee payment
paid by the parties was insufficient
under this section, the balance of the fee
remains payable unless the Staff
Chairperson notifies the parties in
writing that the payment has been
waived in whole or in part.
PART 802—PROVISIONS PERTAINING
TO CERTAIN TRANSACTIONS BY
FOREIGN PERSONS INVOLVING REAL
ESTATE IN THE UNITED STATES
8. The authority citation for part 802
continues to read:
■
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Authority: 50 U.S.C. 4565; E.O. 11858, as
amended, 73 FR 4677.
Subpart E—Notices
§ 802.501
[Amended]
9. Amend § 802.501:
a. In paragraph (a) by adding ‘‘, and
paying the fee required under subpart K
of this part’’ after ‘‘including the
■
■
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certification required under paragraph
(h) of that section’’;
■ b. In paragraph (f) by adding ‘‘, and
payment of the fee required under
subpart K of this part,’’ after ‘‘including
the certification required by
§ 800.502(h)’’; and
■ 10. Amend § 802.502 by revising
paragraph (b)(1)(ix) to read as follows:
§ 802.502
Contents of voluntary notices.
*
*
*
*
*
(b) * * *
(1) * * *
(ix)(A) The value of the transaction in
U.S. dollars, as determined pursuant to
§ 802.1103, and the parties’ assessment
of the applicable fee due under
§ 802.1101, including an explanation of
the methodology used to determine
such valuation and applicable fee; and
(B) If different than the value of the
transaction provided in paragraph
(b)(1)(ix)(A) of this section, a good faith
approximation of the fair market value
of the interest acquired in the covered
real estate in U.S. dollars, as of the date
of the notice.
*
*
*
*
*
■ 11. Amend § 802.503:
■ a. In paragraph (a)(1) by removing the
word ‘‘and’’;
■ b. By redesignating paragraph (a)(2) as
paragraph (a)(3); and
■ c. By adding new paragraph (a)(2).
The addition reads as follows:
§ 802.503
period.
Beginning of 45-day review
§ 802.504 Deferral, rejection, or disposition
of certain voluntary notices.
(a) * * *
(3) Reject any voluntary notice upon
determining that the filing fee paid by
the parties was insufficient under
subpart K of this part, subject to
§ 802.1108.
*
*
*
*
*
■ 13. Add subpart K to read as follows:
Subpart K—Filing Fees
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Amount of fee.
Timing of payment.
Valuation.
Manner of payment.
Refunds.
Waiver.
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Resubmissions.
Rejection of voluntary notice.
Subpart K—Filing Fees
§ 802.1101
Amount of fee.
The parties filing a voluntary notice of
a transaction with the Committee under
§ 802.501(a) shall pay a filing fee as
follows:
(a) Where the value of the transaction
is less than $500,000: No fee;
(b) Where the value of the transaction
is equal to or greater than $500,000 but
less than $5,000,000: $750;
(c) Where the value of the transaction
is equal to or greater than $5,000,000
but less than $50,000,000: $7,500;
(d) Where the value of the transaction
is equal to or greater than $50,000,000
but less than $250,000,000: $75,000;
(e) Where the value of the transaction
is equal to or greater than $250,000,000
but less than $750,000,000: $150,000;
(f) Where the value of the transaction
is equal to or greater than $750,000,000:
$300,000.
§ 802.1102
Timing of payment.
Subject to § 802.1106 through
§ 802.1108, the Staff Chairperson shall
not accept a voluntary notice under
§ 802.503(a) until payment of any fee
required under this section is received
by the Department of the Treasury in the
manner specified on the Committee’s
section of the Department of the
Treasury website.
§ 802.1103
(a) * * *
(2) Confirmed that the applicable fee
required under subpart K of this part
has been paid or waived; and
*
*
*
*
*
■ 12. Amend § 802.504 by redesignating
paragraphs (a)(3) and (4) as paragraphs
(a)(4) and (5), respectively, and adding
paragraph (a)(3) to read as follows:
Sec.
802.1101
802.1102
802.1103
802.1104
802.1105
802.1106
802.1107
802.1108
13593
Valuation.
Except as provided in paragraph (e) of
this section, the value of the transaction
for purposes of determining the required
fee amount in this section shall be
determined as follows:
(a) For a transaction structured as a
purchase, by the total value of all
consideration that has been or will be
provided in the context of the
transaction by or on behalf of the foreign
person that is a purchaser in the
transaction, including cash, assets,
shares or other ownership interests, debt
forgiveness, or services or other in-kind
consideration.
(b) For a transaction structured as a
lease, by the value of the sum of, as
applicable:
(1) Any fixed payments to be paid by
the foreign person that is a lessee in the
transaction to, or for the benefit of, the
lessor over the term of the lease;
(2) Any variable payments that
depend on an index or a rate (such as
a market interest rate) to be paid by the
foreign person that is a lessee in the
transaction to, or for the benefit of, the
lessor, over the term of the lease,
measured for purposes of this section by
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using the index or rate as of the date the
parties file the notice; and
(3) Any non-cash or in-kind
consideration to be provided by the
foreign person that is a lessee in the
transaction to, or for the benefit of, the
lessor, over the term of the lease, as may
be reasonably determined as of the date
the parties file the notice.
(c) For a transaction structured as a
concession, by the value of the sum of
all rent, fees, and charges to be paid by
the foreign person to the grantor and
any non-cash or in-kind consideration
to be provided by such foreign person
to, or for the benefit of, the grantor, over
the term of a concession agreement, as
may be reasonably determined as of the
date the parties file the notice.
(d) Determining the value of
consideration:
(1) Where the consideration includes
securities traded on a national securities
exchange, the value of the securities is
the closing price on the national
securities exchange on which the
securities are primarily traded on the
trading day immediately prior to the
date the parties file the voluntary notice
with the Committee pursuant to
§ 802.501(a), or if the securities were not
traded on that day, the last published
closing price.
(2) Where the consideration includes
other non-cash assets, services, or
interests, including real property
contributed by a foreign person that is
party to a transaction involving the
exchange of land or contribution to a
joint venture, the value of the assets,
service, or interests is their fair market
value at the time of filing.
(3) Where the transaction is a lending
transaction, the value of the
consideration is the cash value of the
mortgage, loan, or similar financing
arrangement, made available or
provided by or on behalf of the foreign
person that is a party to the transaction.
(4) Where the transaction arises from
the conversion of a contingent equity
interest previously acquired by a foreign
person that is a party to the transaction,
the value of the transaction includes the
consideration that was paid by or on
behalf of the foreign person to initially
acquire the contingent equity interest, in
addition to any other consideration.
(e) Exceptions:
(1) In the case of a purchase, where
the consideration to be provided by the
foreign person has not been, or cannot
reasonably be determined as of the date
the parties file the notice, the value of
the transaction is the fair market value
of the assets being purchased in the
transaction as of the date the parties file
the notice.
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17:29 Mar 06, 2020
Jkt 250001
Note 1 to § 802.1103(e)(1): The
consideration amount may be
determined notwithstanding minor
standard adjustments that are to be
made at closing.
(2) In the case of a lease or
concession, where the consideration to
be provided by the foreign person has
not been, or cannot reasonably be
determined at the time of filing, or,
where the parties cannot reasonably
determine the value of rent, fees,
charges, or services pursuant to
paragraph (c) of this section, the filing
fee required shall be that required under
§ 802.1101(b).
(f) The Staff Chairperson is not bound
by the parties’ characterization of the
transaction and its value or their good
faith approximation provided to the
Committee pursuant to
§ 802.502(b)(1)(ix).
(g) Fair market value means the price
that would be received in exchange for
sale of an asset or interest, or paid to
convey a service or to transfer liability,
in an orderly transaction between
market participants.
(1) In determining the fair market
value of assets or interests, parties shall
make a good faith estimate and
generally may rely on the last valuation
as presented in financial statements
prepared in accordance with generally
accepted accounting principles (GAAP)
or other widely recognized accounting
principles, such as the International
Financial Reporting Standards (IFRS), or
the valuation of an independent
appraiser; provided, however, that if no
valuation has occurred within the prior
two fiscal quarters, or if there have been
significant changes to the fair market
value since the last valuation, the
parties shall make a good faith estimate
at the time of filing, or, if the parties are
filing after completion of the
transaction, the date the transaction was
completed.
(2) In determining the fair market
value of services, the parties may rely
upon the value of services determined
by the parties as set forth in an executed
written agreement, or make an estimate
at the time of filing based upon rates
charged to third parties or recent
industry reports or other sources of
comparable commercial data; provided,
however, if such sources are
unavailable, the parties shall make a
good faith estimate. If the parties are
filing after completion of the
transaction, the parties shall make an
estimate of the fair market value as of
the date the transaction was completed.
(h) Examples:
(1) Example 1. Corporation A, a
foreign person, enters into an agreement
for the purchase of a parcel of covered
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Sfmt 4702
real estate (Parcel X) from Corporation
B. The purchase is a covered real estate
transaction. The fair market value of
Parcel X is $37,000,000. In exchange for
ownership of Plot X, Corporation A
forgives a debt owed to it by
Corporation B that is valued at
$5,000,000 and pays $35,000,000 to
Corporation B. Assuming no other
relevant facts, the value of the
transaction is $40,000,000, and the
filing fee is $7,500.
(2) Example 2. Corporation A, a
foreign person, enters into an agreement
to lease a parcel of covered real estate
from Corporation B. The lease is a
covered real estate transaction. Pursuant
to a signed agreement, Corporation A
will pay Corporation B a fixed annual
payment of $300,000 for a term of three
years, with an option to renew the lease
at the end of the term. Assuming no
other relevant facts, the value of the
transaction is $900,000, and the filing
fee is $750.
(3) Example 3. Corporation A, a
foreign person, proposes to enter into a
concession agreement with a U.S. public
entity for the right to use certain
covered real estate for the purpose of
developing and operating terminal
infrastructure at a covered port. The
concession is a covered real estate
transaction. The concession agreement
is for a five-year term. Under the
concession agreement, Corporation A
will pay the U.S. public entity a use
charge of $450,000 per year starting in
the second year. The concession
agreement also requires Corporation A
to pay utility fees and common area
maintenance charges of $5,000 per
month for the full concession term.
Terminal development is scheduled to
be completed 12 months after signing of
the concession agreement, and
Corporation A intends to commence
operations immediately. Assuming no
other relevant facts, the value of the
transaction is $2,100,000, based on the
$1,800,000 use charge and $300,000 in
utility fees. The filing fee is $750.
(4) Example 4. Corporation A, a
foreign person, pays a lease bonus of
$1,000 per acre as an inducement to
execute an oil, gas and mineral lease
with respect to a 10-acre parcel of
covered real estate. The lease has a 10year term. Corporation A must pay a
royalty of 12.5% in amount or value of
oil or gas production removed or sold
from the leased land. Prior to such
production, the foreign person is
obligated to pay a delay rental fee of
$1,000 per acre per year for the first five
years and $2,000 per acre thereafter. A
minimum royalty in lieu of the delay
rental fee is due once oil or gas has been
discovered on the leased land, equal to
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the annual delay rental fee that would
otherwise have been due. Assuming no
other relevant facts, the value of the
transaction is $160,000 and there is no
filing fee.
(i) Timing rule for calculation of filing
fee:
(1) Where a transaction will be
effectuated in multiple phases or
involves the acquisition of contingent
equity interests, the value of the
transaction is the total value of the
transaction including the multiple
phases or contingent equity interests, if
such total value can be reasonably
determined, the conditions that lead to
completion will occur imminently, and
the conditions are within the control of
the acquiring party.
(2) Example: Corporation A, a foreign
person, proposes to purchase Plot X and
acquire an option to purchase Plot Y,
both of which are covered real estate.
The transaction will be completed in
two phases. First, Corporation A will
acquire Plot X and the option related to
Plot Y in exchange for $30,000,000
(Phase 1). Corporation A informs its
shareholders that within two months,
Corporation A will exercise its option to
purchase Plot Y in exchange for another
$30,000,000 (Phase 2). The second
purchase is imminent and in the control
of Corporation A, and the value of
acquisition can be reasonably
determined. Assuming no other relevant
facts, the value of the consideration is
$60,000,000 (the total consideration for
both phases), and the filing fee is
$75,000.
(j) The determination of the value of
the transaction for purposes of
calculating the filing fee in no way
limits the Committee’s jurisdiction or its
authority to review, investigate,
mitigate, or take any other action
regarding any covered real estate
transaction.
§ 802.1104
Manner of payment.
Parties to a transaction must pay any
filing fee by electronic payment. The
filing fee must be paid in U.S. dollars.
Instructions for paying filing fees are
available on the Committee’s section of
the Department of the Treasury website.
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§ 802.1105
Refunds.
(a) Except as provided in this
paragraph, the Department of the
Treasury shall not refund a filing fee in
whole or in part.
(b) If the Committee determines that
the transaction is not a covered real
estate transaction, the filing fee shall be
refunded.
(c) In response to a petition by a party,
if the Staff Chairperson determines,
based on the information and
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17:29 Mar 06, 2020
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representations contained in the
voluntary notice, as well as any other
information provided by the parties,
that a party or the parties to a
transaction paid a filing fee in an
amount greater than required at the time
of filing, the Department of the Treasury
shall refund the amount of overpayment
to the party or parties who paid the
filing fee.
§ 802.1106
Waiver.
If the Staff Chairperson determines
that extraordinary circumstances
relating to national security warrant, the
Staff Chairperson may waive the filing
fee in whole or in part and will notify
the parties in writing. No waiver shall
be implied by the parties, even where
the Staff Chairperson does not reject a
voluntary notice under § 802.1108 for
failure to pay the filing fee.
§ 802.1107
Resubmissions.
The parties to a transaction shall not
be required to pay an additional filing
fee in the event that the Staff
Chairperson permits the parties to
withdraw and resubmit a notice
pursuant to § 802.509(c)(2), unless the
Staff Chairperson determines that a
material change to the transaction has
occurred, or a material inaccuracy or
omission was made by the parties in
information provided to the Committee,
that requires the Committee to consider
new information, in which case the Staff
Chairperson will inform the parties in
writing.
§ 802.1108
Rejection of voluntary notice.
The Staff Chairperson may reject a
voluntary notice pursuant to
§ 802.504(a) upon a determination that
the amount of the filing fee paid by the
parties was insufficient under this
section. Prior to rejecting a notice under
this paragraph, the Staff Chairperson
shall inform the parties in writing of the
insufficiency of payment and provide
the parties three business days to pay
the remainder of the filing fee. If the
Staff Chairperson does not reject a
voluntary notice pursuant to
§ 802.504(a) upon a determination that
the amount of the filing fee payment
paid by the parties was insufficient
under this section, the balance of the fee
remains payable unless the Staff
Chairperson notifies the parties in
writing that the payment has been
waived in whole or in part.
Dated: March 2, 2020.
Thomas Feddo,
Assistant Secretary for Investment Security.
[FR Doc. 2020–04641 Filed 3–4–20; 4:15 pm]
BILLING CODE 4810–25–P
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13595
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG–2020–0035]
RIN 1625–AA08
Special Local Regulation; East
Passage, Narragansett Bay, RI
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard is proposing
to amend an existing special local
regulation for certain waters of the East
Passage, Narragansett Bay, RI. This
action is necessary to provide for the
safety of life on these navigable waters
near East Passage, Narragansett Bay, RI,
during a sail boat race. This proposed
rulemaking would prohibit persons and
vessels from entering the special local
regulation unless authorized by the
Captain of the Port Sector Southeastern
New England or a designated
representative. We invite your
comments on this proposed rulemaking.
DATES: Comments and related material
must be received by the Coast Guard on
or before April 8, 2020.
ADDRESSES: You may submit comments
identified by docket number USCG–
2020–0035 using the Federal
eRulemaking Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
SUMMARY:
If
you have questions about this proposed
rulemaking, call or email LT Arthur
Frooks, Waterways Management
Division, U.S. Coast Guard; telephone
401–435–2355, email D01-SMBSectorSENE-Waterways@uscg.mil.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port Sector
Southeastern New England
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background, Purpose, and Legal
Basis
On October 17, 2019, the Newport to
Bermuda Race notified the Coast Guard
that they would be conducting a sail
boat race from 11 a.m. through 5 p.m.
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Agencies
[Federal Register Volume 85, Number 46 (Monday, March 9, 2020)]
[Proposed Rules]
[Pages 13586-13595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04641]
=======================================================================
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DEPARTMENT OF THE TREASURY
Office of Investment Security
31 CFR Parts 800 and 802
RIN 1505-AC65
Filing Fees for Notices of Certain Investments in the United
States by Foreign Persons and 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 establish a fee for parties filing a
voluntary notice of certain transactions for review by the Committee on
Foreign Investment in the United States (CFIUS). In establishing a fee
for such notices, this proposed rule would implement section 1723 of
the Foreign Investment Risk Review Modernization Act of 2018, which
amends section 721 of the Defense Production Act of 1950 to allow CFIUS
to collect fees.
DATES: Written comments must be received by April 8, 2020.
ADDRESSES: Written comments on this proposed rule 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 Department of the Treasury (Treasury
Department) to make the comments available to the public. Please note
that comments submitted through https://www.regulations.gov will be
public, and can be viewed by members of the public.
Mail: Send to U.S. Department of the Treasury, Attention:
Laura Black, Director of Investment Security Policy and International
Relations, 1500 Pennsylvania Avenue NW, Washington, DC 20220.
Please submit comments only and include your name and company name
(if any), and cite ``Filing Fees for Notices of Certain Investments in
the United States by Foreign Persons and Certain Transactions By
Foreign Persons Involving Real Estate in the United States'' in all
correspondence. In general, the Treasury Department will post all
comments to https://www.regulations.gov without change, including any
business or personal information provided, such as names, addresses,
email addresses, or telephone numbers. All comments received, including
attachments and other supporting material, will be part of the public
record and subject to public disclosure. You should only submit
information that you wish to make publicly available.
FOR FURTHER INFORMATION CONTACT: For questions about this proposed
rule, contact: Laura Black, Director of Investment Security Policy and
International Relations; Meena R. Sharma, Deputy Director of Investment
Security Policy and International Relations; David Shogren, Senior
Policy Advisor; or James Harris, Senior Policy Advisor, at U.S.
Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC
20220; telephone: (202) 622-3425; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On August 13, 2018, the Foreign Investment Risk Review
Modernization Act of 2018 (FIRRMA), Subtitle A of Title XVII of Public
Law 115-232, 132 Stat. 2173, was enacted. FIRRMA amends section 721
(section 721) of the Defense Production Act of 1950 (DPA), which
delineates the authorities and jurisdiction of the Committee on Foreign
Investment in the United States (CFIUS or the Committee). Executive
Order 13456, 73 FR 4677 (Jan. 23, 2008), directs the Secretary of the
Treasury to issue regulations implementing section 721. This proposed
rule is being issued pursuant to that authority.
FIRRMA maintains the Committee's jurisdiction over any transaction
which could result in foreign control of any U.S. business, and it
broadens the authorities of the President and CFIUS under section 721
to review and to take action to address any national security concerns
arising from certain non-controlling investments and real estate
transactions. FIRRMA refers to the transactions over which CFIUS has
jurisdiction as ``covered transactions.'' This statutory reference is
implemented in the final rule for 31 CFR part 800 at 85 FR 3112 (Part
800 rule) as the definition of ``covered transaction'' and in the final
rule for 31 CFR part 802 at 85 FR 3158 (Part 802 rule) as the
definition of ``covered real estate transaction.'' FIRRMA also
modernizes CFIUS's processes to better enable timely and effective
reviews of transactions falling under its jurisdiction, including by
introducing the concept of a declaration--an abbreviated notification
to which the Committee must respond within a 30-day assessment period--
as an alternative to a voluntary notice, which has been the traditional
means of filing a transaction with CFIUS.
FIRRMA further provides that ``the Committee may assess and collect
a fee in an amount determined by the Committee in regulations . . .
with respect to each covered transaction for which a written notice is
submitted to the Committee.'' FIRRMA, section 1723. FIRRMA directs that
the fee be based on the value of the transaction, taking various
factors into account. It also provides that such fees may not exceed an
amount equal to the lesser of one percent of the value of the
transaction, or $300,000, adjusted annually for inflation.
On January 17, 2020, the Treasury Department published two rules
implementing FIRRMA. The Part 800 rule continues CFIUS's jurisdiction
over transactions that could result in control of a U.S. business. It
also implements the provisions of FIRRMA relating to CFIUS's new
jurisdiction to review certain non-controlling investments in a U.S.
business that afford a foreign person specified access to information
in the possession of, rights in, or involvement in the substantive
decisionmaking of U.S. businesses with certain activities relating to
critical technologies, critical infrastructure, or sensitive personal
data. In addition, the Part 800 rule makes certain changes to CFIUS's
existing process and procedures, including allowing parties to submit
any transaction to CFIUS through a declaration. The Part 802 rule
implements the provisions of FIRRMA relating to CFIUS's new
jurisdiction to review the purchase or lease by, or concession to, a
foreign person of certain real estate in the United States. Those two
rules did not include any provisions regarding filing fees.
This proposed rule would establish a filing fee for ``covered
transactions'' under the Part 800 rule and ``covered real estate
transactions'' under the Part 802 rule that are filed with the
Committee as voluntary written notices. The proposed fee structure and
amounts are the same for the Part 800 rule and the Part 802 rule. In
accordance with FIRRMA, there is no fee for any declaration submitted
to the Committee,
[[Page 13587]]
or for any unilateral review of a transaction based on an agency notice
filed by any member of the Committee. However, the filing fee does
apply to notices filed by parties to a covered transaction or a covered
real estate transaction after the Committee has completed its
assessment of a declaration and taken action under Sec. 800.407 or
Sec. 802.405 (i.e., in cases where the Committee requests that the
parties file a written notice and in cases where the Committee informs
parties that it is not able to conclude action and that the parties may
file a written notice). The filing fee also applies where parties
choose to notify CFIUS of a transaction subject to Sec. 800.401
through a notice instead of a declaration.
The Treasury Department has proposed a fee structure that it
believes will not discourage filings and will allow parties to continue
the practice of determining whether to file a voluntary written notice
based on an evaluation of the facts and circumstances of the
transaction. The proposed fees for notices are based on the value of
the notified transaction, with the smallest transactions (i.e., those
with a value of less than $500,000) not being assessed a filing fee.
For transactions with values equal to or exceeding $500,000, the filing
fee is based on a tiered approach, as follows:
Where the value of the transaction is equal to or greater
than $500,000 but less than $5,000,000, a filing fee of $750 is
assessed;
Where the value of the transaction is equal to or greater
than $5,000,000 but less than $50,000,000, a filing fee of $7,500 is
assessed;
Where the value of the transaction is equal to or greater
than $50,000,000 but less than $250,000,000, a filing fee of $75,000 is
assessed;
Where the value of the transaction is equal to or greater
than $250,000,000 but less than $750,000,000, a filing fee of $150,000
is assessed; and
Where the value of the transaction is equal to or greater
than $750,000,000, a filing fee of $300,000 is assessed.
The applicable fee must be paid to the Treasury Department prior to
the Staff Chairperson accepting a notice for review, except in certain
limited circumstances where the Staff Chairperson waives the filing
fee. Payment instructions will be available on the Treasury Department
website prior to the effective date of the final rule implementing the
filing fees.
The proposed rule describes how a transaction's value is
determined, the manner of payment, circumstances in which the Treasury
Department may issue a refund, when an additional fee may be required
in the event of the withdrawal and refiling of a notice, and the
consequences of fee underpayment.
II. Methodology for Establishing the Fee Structure
A. Consideration of Various Factors
In establishing a filing fee, FIRRMA requires the Committee to take
into account the effect of the fee on small business concerns, the
expenses of the Committee associated with conducting activities under
section 721, the effect of the fee on foreign investment, and any other
matters the Committee considers appropriate.
The Treasury Department and CFIUS member agencies considered the
effect of a fee on small businesses, and a more detailed discussion of
the potential impact of the proposed fee structure on small businesses
is included in the Regulatory Flexibility Act discussion, below. The
proposed fee structure accounts for and attempts to minimize the impact
on small business concerns by not assessing a fee on transactions that
are valued at less than $500,000. Additionally, the fee for
transactions valued between $500,000 and $5,000,000 is set at only
$750. Should the filing fee pose a concern to a small business, the
declaration process, for which there is no filing fee, is available for
any transaction. Furthermore, there is the possibility, which is not
intended to be used frequently, for the Staff Chairperson to waive the
filing fee in whole or in part if extraordinary circumstances relating
to national security warrant.
The Treasury Department also considered the expenses of the
Committee associated with carrying out section 721. As noted above, the
Committee's jurisdiction has expanded through the enactment of FIRRMA.
The Treasury Department and CFIUS member agencies are increasing
personnel and making infrastructure and other resource expenditures to
implement section 721. In light of this, the Treasury Department
determined that the proposed fee amounts were appropriate and has
estimated that the fees would allow the Committee to recoup a portion
of the costs associated with, but would not exceed the cost of,
administering section 721. The Treasury Department will monitor the
amount of fees generated and administration costs and will adjust fees
as needed, including through new rule making, as appropriate.
The Treasury Department considered alternatives to the proposed fee
structure in seeking to assess the impact on foreign investment. In
particular, the Treasury Department considered setting a fixed or
variable rate to be applied to all notices, as well as a uniform fixed
fee amount for all notices--before determining that the proposal in
this rule was the most appropriate based on various factors including
proportionality, administration, clarity, and impact on parties'
decision whether to file a notice. The proposed fees represent only a
small amount (0.15 percent or less) of the overall value of the
transactions for which a fee will be assessed, and the Treasury
Department does not believe the proposed fees will discourage foreign
investment in the United States or the filing of written notices with
the Committee. However, the Treasury Department is interested in
learning from the public about the impact that filing fees may have on
a party's decision to engage in a transaction and whether to seek safe
harbor through the submission of a voluntary notice.
B. Tiered Fixed-Fee Proposal
The proposed rule sets forth a tiered, fixed-fee schedule based on
transaction value. This structure allows the Treasury Department to set
the fees consistent with the requirements in FIRRMA and is informed by
the nature and value of transactions that have typically been filed as
notices.
The tiers set a generally consistent fee rate relative to the value
of the transaction. Because parties must pay fees prior to the Staff
Chairperson accepting a notice for review, the fee tiers are structured
in a manner that allows the required fee for a transaction that has not
yet closed to be determined with relative certainty. This structure was
intended to achieve the Treasury Department's goals of clarity and
administrative efficiency.
The Treasury Department expects that the filing fee will represent
a relatively small proportion of the total transaction costs associated
with any given transaction. In each case, the fee amount set in the
proposed rule is no more than 0.15 percent of the overall transaction
value. If, however, the filing fee is burdensome in the context of a
particular transaction, parties can consider filing a declaration
instead of a notice, which does not require payment of a fee.
The Treasury Department is interested in comments from the public
on the impact of the proposed tiered fixed-fee structure and whether
additional tiers or additional features should be considered.
[[Page 13588]]
C. Calculating Transaction Value
The proposed rule describes with particularity how to determine the
value of a transaction for purposes of determining the applicable fee.
This determination is relevant only for calculating the applicable
filing fee and is not determinative of the Committee's assessment as to
what constitutes the ``covered transaction'' or ``covered real estate
transaction'' subject to its review. The Treasury Department
anticipates that, in most instances, determining the value of the
transaction will be straightforward, based on the amount of money the
foreign person is paying in the transaction.
Generally, for transactions subject to the Part 800 rule and for
purchases of real estate subject to the Part 802 rule, the value of a
transaction will be the total value of all consideration that has been
or will be paid in the context of the transaction by or on behalf of
the foreign person who is a party to the transaction, including cash,
assets, shares or other ownership interests, debt forgiveness,
services, or other in-kind consideration. Where a covered transaction
is a part of a transaction that includes one or more non-U.S.
businesses, the total value of the transaction will generally be
assessed based on the global value of the transaction encompassing both
U.S. and non-U.S. businesses. There is an exception for transactions
under the Part 800 rule where the value of the transaction is equal to
or greater than $5,000,000, but the value of the interests or rights
acquired in the U.S. business is less than $5,000,000. In such cases,
the fee will be $750. This exception was intended to minimize any
potential disincentives the fee may pose to parties filing a notice
with CFIUS, where the target company has a limited presence in the
United States. The Treasury Department is interested in comments on
whether a similar approach should be taken for transactions under the
Part 802 rule, where the value of the covered real estate is relatively
small in the context of the overall transaction.
The proposed rule also specifies how the transaction value for
leases and concessions under the Part 802 rule will be determined.
Specifically, leases and concessions would be valued according to the
sum of the consideration, including lease inducements, fixed payments,
certain variable lease payments, and other types of identifiable
consideration applicable to real estate transactions. Within the
general categories of real estate transactions, certain variations in
terms of valuation, payment structures, and other consideration will
impact the fee calculation. The Treasury Department welcomes comments
on the approach taken in the proposed rule and whether and how the rule
could be further tailored to address industry practices.
The Treasury Department recognizes that, for some transactions,
consideration may be paid in securities or other non-cash assets, or
even in services or other in-kind consideration, and the proposed rule
addresses these scenarios. For transactions where the consideration is
a security that is traded on a national securities exchange, the value
of the transaction is calculated based on the closing price on the
national securities exchange on which the securities are primarily
listed on the trading day immediately prior to the date the parties
file a notice with the Committee. If the security was not traded on
that day, the last published closing price would be used. Where the
consideration includes other non-cash assets, interests, or services or
other in-kind consideration, the value of the consideration would be
the fair market value as of the date the parties file the notice. Where
the transaction is a lending transaction, the value of the
consideration is the cash value of the loan or similar financing
arrangement. Additionally, where the transaction arises from the
conversion of a contingent equity interest previously acquired by a
foreign person, the value of the transaction would include the
consideration that was paid by or on behalf of the foreign person to
initially acquire the contingent equity interest in addition to any
other consideration.
In the rare circumstance in which the consideration for a
transaction has not been determined, the value of the transaction would
be based on the fair market value of the assets or real estate being
acquired in the transaction as of the date the parties file the notice,
or the fair market value of the U.S. business being merged or
contributed. The proposed rule includes a definition of fair market
value, which tracks the basic definition described in the Financial
Accounting Standards Board Statement No. 157.
In order to assist the parties and the Committee in determining the
appropriate fee amount associated with a transaction, the proposed rule
also makes modest revisions to the content requirements for joint
voluntary notices under the Part 800 rule and the Part 802 rule.
Specifically, the proposed rule adds a requirement that, along with a
good faith estimate of the net value of the interest acquired in the
U.S. business by the foreign person, the parties provide the Committee
with the value of the transaction and an explanation of the methodology
used to determine such valuation and the applicable fee.
Additionally, as discussed above, the proposed fee rule for Part
800 provides that where a covered transaction is part of a transaction
valued at or greater than $5,000,000 that includes one or more non-U.S.
businesses, but the value of the interests or rights acquired in the
U.S. business is less than $5,000,000, the fee will be $750, regardless
of the value of the overall transaction. If the value of the U.S.
business equals or exceeds $5,000,000, then the fee will be determined
based on the total value of the overall transaction.
D. Other Matters--Timing and Refunds
The proposed rule requires that parties pay any applicable fee at
the time they file a notice with the Committee. The Staff Chairperson
may decide not to accept a notice, and the Committee may not begin
reviewing a notice, until the Treasury Department has received the
applicable fee. Where the Staff Chairperson accepts a notice but later
determines that the fee was underpaid, prior to rejecting the notice
the Staff Chairperson will inform the parties in writing of the
insufficiency of payment and provide the parties three business days to
pay the remainder of the filing fee. In addition, no waiver will be
implied, even where the Staff Chairperson does not reject a voluntary
notice for failure to pay the full amount of the filing fee.
Furthermore, while the Treasury Department will not, as a general
matter, provide refunds of filing fees, if it determines that a
notified transaction is not a covered transaction or a covered real
estate transaction, as relevant, it will refund the filing fee to the
party that made the payment.
The proposed rule permits parties to petition the Staff Chairperson
to seek a partial refund of fees, if the parties can demonstrate that a
party or the parties to a transaction paid a filing fee in an amount
greater than required at the time of filing. The Treasury Department
anticipates that such partial refunds will be made infrequently due to
the tiered fee structure. Additionally, the Staff Chairperson may waive
the fee, in whole or in part, if the Staff Chairperson determines that
extraordinary circumstances relating to national security warrant such
a waiver.
Finally, the proposed rule does not require parties to pay an
additional fee where the Committee allows the parties to withdraw and
re-file a notice, unless the Staff Chairperson determines that a
material change to the transaction has occurred, or a material
inaccuracy or
[[Page 13589]]
omission was made by the parties in information provided to the
Committee, that requires the Committee to consider new information, in
which case the Staff Chairperson will inform the parties in writing.
III. Rulemaking Requirements
Executive Order 12866
These regulations are not subject to the general requirements of
Executive Order 12866, which covers review of regulations by the Office
of Information and Regulatory Affairs in the Office of Management and
Budget (OMB), because they relate 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 7(c) of the April 11, 2018
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 this notice of proposed
rulemaking has been submitted to the OMB for review in accordance with
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control
number 1505-0121.
Comments on the collection of information should be sent to the
Office of Management and Budget, Attn: Desk Officer for the Department
of the Treasury, Office of Information and Regulatory Affairs,
Washington, DC 20503, or via email to [email protected], with
copies to Laura Black, Director of Investment Security Policy and
International Relations, U.S. Department of the Treasury, 1500
Pennsylvania Avenue NW, Washington, DC 20220. Comments on the
collection of information should be received by May 8, 2020.
In accordance with 5 CFR 1320.8(d)(1), the Treasury Department is
soliciting comments from members of the public concerning this
collection of information to:
(1) Evaluate 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;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology.
The information collection in this proposed rule is in Sec.
800.502(c)(1)(viii) and Sec. 802.502(b)(1)(ix). Specifically, the
proposed rule would add a requirement that, along with the existing
requirement for a good faith approximation of value of the interest
acquired in the U.S. business or covered real estate by the foreign
person, the parties provide the Committee with the value of the
transaction and an explanation of the methodology used to determine
such valuation and the applicable fee. This proposal has been submitted
to OMB as a revision to the collection of information approved under
1505-0121 without a change in the total burden hours. The notice
requirement was previously approved under the Paperwork Reduction Act
with a per respondent burden of 130 hours. This burden should account
for the modest increase in reporting under proposed Sec.
800.502(c)(1)(viii) and Sec. 802.502(b)(1)(ix); however, comments are
invited from members of the public who believe the burden hours should
be revised.
An agency may not conduct or sponsor and an individual 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 (5 U.S.C. 601 et seq.) (RFA)
generally requires an agency to prepare an initial 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 Procedures Act (5 U.S.C.
553) (APA), 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 another law requiring the publication of a general notice
of proposed rulemaking, the RFA does not apply.
The proposed rule implements 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 the acquisition, merger, or takeover
of, or certain other investments in, a U.S. business by a foreign
person, and certain real estate transactions by a foreign person, 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 RFA applies to this rulemaking, the
Secretary of the Treasury certifies that this proposed rule, if
adopted, will not have a significant economic impact on a substantial
number of small entities.
The proposed rule would implement a fee for filing a notice of a
covered transaction and a covered real estate transaction, as those
terms are defined in Part 800 and Part 802 of CFIUS's regulations. The
Treasury Department attempted to minimize the burden of this fee
requirement on small entities. For example, a transaction valued at
less than $500,000 will have no associated filing fee. Additionally,
while the Treasury Department has proposed a $750 fee for transactions
valued at or greater than $500,000 but less than $5,000,000, which may
affect small entities as they are defined by the Small Business
Administration (SBA), the fee is relatively small in real terms. At
that level, the administrative fee represents only 0.15 percent of the
value of the smallest dollar valuation for a
[[Page 13590]]
transaction that would incur a fee ($500,000).
Moreover, the fee rules will not impact a ``substantial number'' of
small entities. There is no single source for information on the number
of small U.S. businesses that receive foreign investment (direct or
indirect), including those involved with critical technologies,
critical infrastructure, or sensitive personal data, such that they
would be directly impacted by the Part 800 rule. However, the Bureau of
Economic Analysis (BEA) within the Department of Commerce collects, on
an annual basis, data on new foreign direct investment in the United
States through its Survey of New Foreign Direct Investment in the
United States (Form BE[hyphen]13). While these data are self-reported,
and include only direct investments in U.S. businesses in which the
foreign person acquires at least 10 percent of the voting shares (and
consequently, do not capture investments below 10 percent, which may
nevertheless be covered transactions), they nonetheless provide
relevant information on a category of U.S. businesses that receive
foreign investment, some of which may be covered by the proposed rule.
According to the BEA, in 2018, the most current year for which data
is available, foreign persons obtained at least a 10 percent voting
share in 832 U.S. businesses. See U.S. Bureau of Economic Analysis,
``Number of Investments Initiated in 2018, Distribution of Planned
Total Expenditures, Size by Type of Investment,'' available at https://apps.bea.gov/international/xls/Table15-14-15-16-17-18.xls (last visited
March 2, 2020). The BEA only reports the general size of the investment
transaction, not the type of the U.S. business involved, nor whether
the U.S. business is considered a ``small business'' by the SBA, which
defines small businesses based on annual revenue or number of
employees. The smallest foreign investment transactions that the BEA
reports are those with a dollar value below $50,000,000. While not all
U.S. businesses receiving a foreign investment of less than $50,000,000
are considered ``small'' for the purposes of the RFA, many might be,
and the number of U.S. businesses receiving foreign investments of less
than $50,000,000 can serve as a proxy for the number of transactions
involving small U.S. businesses that might be subject to CFIUS's
jurisdiction.
Of the above mentioned 832 U.S. businesses receiving foreign
investment in 2018, 576 were involved in transactions valued at less
than $50,000,000. Although this figure is under inclusive because it
does not capture all transactions that could potentially fall under the
rule, it also is over inclusive because it is not limited to any
particular type of U.S. business. The Treasury Department believes the
figure of 576 is the best estimate based on the available data of the
number of small U.S. businesses that may be impacted by this rule, but
for the reasons set forth below, the impact on those small U.S.
businesses will not be significant.
According to the SBA, there were approximately 30,200,000 small
businesses (defined as ``firms employing fewer than 500 employees'') in
the United States as of 2018. See ``2018 Small Business Profile,''
available at https://www.sba.gov/sites/default/files/advocacy/2018-Small-Business-Profiles-US.pdf (last visited March 2, 2020). If
approximately 600 small U.S. businesses will be potentially impacted by
this rule, then the rule may potentially impact less than one percent
of all small U.S. businesses.
There is no single source for information on the number of small
U.S. businesses that would be involved in some way in the purchase or
lease by, or concession to a foreign person of real estate that could
be covered under the Part 802 rule. However, the Treasury Department
anticipates only 350 real estate transactions, out of the thousands or
more of the annual number of real estate transactions in the United
States, will be the subject of a declaration or notice of a covered
real estate transaction. Further background on this estimate was
included in the estimate of burden hours submitted to OMB in accordance
with the Paperwork Reduction Act under Document Control Number 1505-
0121.
Additionally, as required by FIRRMA, the rule takes into account
and attempts to minimize the impact it may have on small U.S.
businesses. For example, the rule contains no fee for transactions
valued at less than $500,000. In addition, the fee is only $750 where
the value of the transaction is equal to or greater than $500,000 but
less than $5,000,000, and the fee is $7,500 where the value of the
transaction is equal to or greater than $5,000,000 but less than
$50,000,000. Therefore, to the extent that small U.S. businesses will
incur a fee for a notice, that fee will represent only a fraction of
the value of the transaction to the parties. The Treasury Department
does not expect this filing fee rule to change the estimate of burden
hours for completing notices which was previously submitted to OMB in
accordance with the Paperwork Reduction Act under Document Control
Number 1505-0121.
Also, as discussed above, the fee is only incurred when parties
file a notice of a transaction with the Committee. The Treasury
Department has not proposed any fees to submit a declaration of a
transaction, and under the Part 800 rule and Part 802 rule, parties may
submit a declaration of any covered transaction or any covered real
estate transaction. Declarations will take less time and incur less
cost for parties to complete. Additional information about
declarations, including the procedures to file them and their content
requirements, is available in the final CFIUS rules at 85 FR 3112 (Jan.
17, 2020) and 85 FR 3158 (Jan. 17, 2020).
Accordingly, for the reasons stated above, the Secretary of the
Treasury certifies that the proposed rule, if implemented, will not
have a ``significant economic impact on a substantial number of small
entities,'' 5 U.S.C. 605(b). Nevertheless, the Treasury Department is
interested in any comments on how the proposed rule would affect small
entities.
List of Subjects
31 CFR Part 800
Foreign investments in the United States, Investments, Investment
companies, National defense, Fees.
31 CFR Part 802
Foreign investments in the United States, Federal buildings and
facilities, Government property, Investigations, Investments,
Investment companies, Land sales, National defense, Public lands, Real
property acquisition, Reporting and Recordkeeping requirements, Fees.
For the reasons set forth in the preamble, the Treasury Department
proposes to amend 31 CFR parts 800 and 802 as follows:
PART 800--REGULATIONS PERTAINING TO CERTAIN INVESTMENTS IN THE
UNITED STATES BY FOREIGN PERSONS
0
1. The authority citation for part 800 continues to read:
Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.
Subpart E--Notices
Sec. 800.501 [Amended]
0
2. Amend Sec. 800.501:
0
a. In paragraph (a) by adding ``, and paying the fee required under
subpart K of this part'' after ``including the certification required
under paragraph (l) of that section''; and
[[Page 13591]]
0
b. In paragraph (f) by adding ``, and payment of the fee required under
subpart K of this part,'' after ``including the certification required
by Sec. 800.502(l)''.
0
3. Amend Sec. 800.502 by revising paragraph (c)(1)(viii) to read as
follows:
Sec. 800.502 Contents of voluntary notices.
* * * * *
(c) * * *
(1) * * *
(viii)(A) The value of the transaction in U.S. dollars, as
determined pursuant to Sec. 800.1103, and the parties' assessment of
the applicable fee due under Sec. 800.1101, including an explanation
of the methodology used to determine such valuation and applicable fee;
and
(B) If different than the value of the transaction provided in
paragraph (c)(1)(viii)(A) of this section, a good faith approximation
of the net value of the interest acquired in the U.S. business in U.S.
dollars, as of the date of the notice.
* * * * *
0
4. Amend Sec. 800.503:
0
a. In paragraph (a)(1), by removing the word ``and'';
0
b. By redesignating paragraph (a)(2) as paragraph (a)(3); and
0
c. By adding new paragraph (a)(2).
The addition reads as follows:
Sec. 800.503 Beginning of 45-day review period.
(a) * * *
(2) Confirmed that the applicable fee required under subpart K of
this part has been paid, or waived; and
* * * * *
0
6. Amend Sec. 800.504 by redesignating paragraphs (a)(3) and (4) as
paragraphs (a)(4) and (5), respectively, and adding new paragraph
(a)(3) to read as follows:
Sec. 800.504 Deferral, rejection, or disposition of certain
voluntary notices.
(a) * * *
(3) Reject any voluntary notice upon determining that the filing
fee paid by the parties was insufficient under subpart K of this part,
subject to Sec. 800.1108.
* * * * *
0
7. Add subpart K to read as follows:
Subpart K--Filing Fees
Sec.
800.1101 Amount of fee.
800.1102 Timing of payment.
800.1103 Valuation.
800.1104 Manner of payment.
800.1105 Refunds.
800.1106 Waiver.
800.1107 Resubmissions.
800.1108 Rejection of voluntary notice.
Subpart K--Filing Fees
Sec. 800.1101 Amount of fee.
The parties filing a voluntary notice of a transaction with the
Committee under Sec. 800.501(a) shall pay a filing fee as follows:
(a) Where the value of the transaction is less than $500,000: No
fee;
(b) Where the value of the transaction is equal to or greater than
$500,000 but less than $5,000,000: $750;
(c) Where the value of the transaction is equal to or greater than
$5,000,000 but less than $50,000,000: $7,500;
(d) Where the value of the transaction is equal to or greater than
$50,000,000 but less than $250,000,000: $75,000;
(e) Where the value of the transaction is equal to or greater than
$250,000,000 but less than $750,000,000: $150,000;
(f) Where the value of the transaction is equal to or greater than
$750,000,000: $300,000.
Sec. 800.1102 Timing of payment.
Subject to Sec. Sec. 800.1106 through 800.1108, the Staff
Chairperson shall not accept a voluntary notice under Sec. 800.503(a)
until payment of any fee required under this section is received by the
Department of the Treasury in the manner specified on the Committee's
section of the Department of the Treasury website.
Sec. 800.1103 Valuation.
(a) Except as provided in paragraph (c) of this section, the value
of the transaction for purposes of determining the required fee amount
in this section means the total value of all consideration that has
been or will be provided in the context of the transaction by or on
behalf of the foreign person that is a party to the transaction,
including cash, assets, shares or other ownership interests, debt
forgiveness, or services or other in-kind consideration.
(b) Determining the value of consideration:
(1) Where the consideration includes securities traded on a
national securities exchange, the value of the securities is the
closing price on the national securities exchange on which the
securities are primarily traded on the trading day immediately prior to
the date the parties file the voluntary notice with the Committee
pursuant to Sec. 800.501(a), or if the securities were not traded on
that day, the last published closing price.
(2) Where the consideration includes other non-cash assets,
services, interests, or in-kind consideration, the value of the assets,
services, interests, or in-kind consideration is their fair market
value as of the date the parties file the notice.
(3) Where the transaction is a lending transaction, the value of
the consideration is the cash value of the loan, or similar financing
arrangement, made available or provided by or on behalf of the foreign
person that is a party to the transaction.
(4) Where the transaction arises from the conversion of a
contingent equity interest previously acquired by a foreign person that
is a party to the transaction, the value of the transaction includes
the consideration that was paid by or on behalf of the foreign person
to initially acquire the contingent equity interest, in addition to any
other consideration paid in connection with the conversion.
(c) Exceptions:
(1) Where the consideration to be paid by the foreign person has
not been, or cannot reasonably be determined as of the date the parties
file the notice, the value of the transaction is the fair market value
of the assets being acquired in the transaction as of the date the
parties file the notice.
Note to Sec. 800.1103(c)(1): The consideration amount may be
determined notwithstanding minor standard adjustments that are to be
made at closing.
(2) Where the transaction involves a merger or the contribution of
a U.S. business to a joint venture, the value of the transaction is the
fair market value of the U.S. business being merged or contributed.
(3) Where the value of a transaction is $5,000,000 or more, but the
transaction includes one or more non-U.S. businesses, and the value of
the interests or rights acquired in the U.S. business is less than
$5,000,000, the filing fee under Sec. 800.1101(b) is applicable. The
value of the U.S. business, for purposes of this paragraph, is the fair
market value of the assets of the U.S. business.
(d) Fair market value means the price that would be received in
exchange for selling an asset or interest, or paid to receive a service
or to transfer liability, in an orderly transaction between market
participants.
(1) In determining the fair market value of assets or interests,
parties shall make a good faith estimate and generally may rely on the
last valuation of the assets as presented in financial statements
prepared in accordance with generally accepted accounting principles
(GAAP) or other widely recognized accounting principles, such as the
International Financial Reporting Standards (IFRS), or the valuation of
an independent appraiser; provided, however, that if no valuation has
[[Page 13592]]
occurred within the prior two fiscal quarters, or if there have been
significant changes to the fair market value since the last valuation,
the parties shall make a good faith estimate as of the filing date, or,
if the parties are filing after the completion of the transaction, the
date that the transaction was completed.
(2) In determining the fair market value of services, the parties
may rely upon the value of services determined by the parties as set
forth in an executed written agreement, or make an estimate as of the
date of filing based upon rates charged to third parties or upon recent
industry reports or other sources of comparable commercial data;
provided, however, if such sources are unavailable, the parties shall
make a good faith estimate. If the parties are filing after completion
of the transaction, the parties shall make an estimate of the fair
market value as of the date the transaction was completed.
(3) The Staff Chairperson is not bound by the parties'
characterization of the transaction and its value or the parties' good
faith approximation provided to the Committee pursuant to Sec.
800.502(c)(1)(viii).
(e) Examples:
(1) Example 1. Corporation A, a foreign person, proposes to acquire
all of the issued and outstanding shares of Corporation B, a U.S.
business, in exchange for $100,000,000 in cash. Assuming no other
relevant facts, the value of the transaction is $100,000,000, and the
filing fee is $75,000.
(2) Example 2. Corporation A, a foreign person, proposes to acquire
all of the issued and outstanding shares of Corporation B, a U.S.
business, in a two-for-one stock swap transaction whereby a holder of a
share of Corporation B's stock is entitled to receive two shares of
Corporation A's stock. Corporation A's stock is listed on the NASDAQ, a
national securities exchange. In aggregate, the holders of Corporation
B's stock will receive 10,000,000 shares of Corporation A's stock in
the transaction. On the trading day immediately prior to the filing of
the joint voluntary notice, the closing price of Corporation A's stock
on NASDAQ was $20 per share. Assuming no other relevant facts, the
value of the transaction is $200,000,000, and the filing fee is
$75,000.
(3) Example 3. Corporation B, a U.S. business, is issuing new
shares that will represent 50 percent of its issued and outstanding
shares. Corporation A, a foreign person, proposes to acquire these
shares. As consideration, Corporation A will contribute to Corporation
X certain inventory, machines, and other non-cash assets. The parties
to the transaction estimate in good faith, based on the most recent
quarterly financial statements of Corporation A, which were prepared in
accordance with GAAP, that the fair market value of the assets is
$40,000,000. Assuming no other relevant facts, the value of the
transaction is $40,000,000, and the filing fee is $7,500.
(4) Example 4. Corporation A and Corporation B are establishing a
joint venture, JV Corp., which will be controlled by Corporation B, a
foreign person. Corporation A contributes a U.S. business, the fair
market value of which is $150,000,000, to JV Corp. Corporation B
contributes $150,000,000 in cash to JV Corp. The value of the
transaction is $150,000,000, which is equal to the value of the U.S.
business being contributed. Assuming no other relevant facts, the
filing fee is $75,000.
(5) Example 5. Corporation A, a foreign person, enters into a stock
purchase agreement with Person Z to acquire 100 percent of the issued
and outstanding shares of Corporation B, a U.S. business. The value of
the consideration has not been determined because it will only be
payable once Corporation B achieves certain development and sales
milestones, and it will be 10 percent of Corporation B's revenue over a
future five-year period. The parties estimate in good faith that the
fair market value of Corporation B is $30,000,000 based on a number of
factors, including application of well-known accounting standards such
as Financial Accounting Standards Board Statement 157, a recent
valuation conducted by a third-party auditor, and a proposal to acquire
Corporation B made by another bidder for approximately $30,000,000 in
cash. Assuming no other relevant facts, the value of the transaction is
$30,000,000, and the filing fee is $7,500.
(6) Example 6. Corporation A, a foreign person, proposes to acquire
100 percent of the equity interest of Corporation B, a foreign person,
for $100,000,000. Corporation B has subsidiaries in several countries,
including Corporation C, a U.S. business. The fair market value of
Corporation C's assets is $1,000,000. Assuming no other relevant facts,
under paragraph (d)(3) of this section, a $750 filing fee is required.
(f) Timing rule for calculation of filing fee:
(1) Where a transaction will be effectuated in multiple phases or
involves the acquisition of contingent equity interests, the value of
the transaction is the total value of the transaction including the
multiple phases or contingent equity interests, if such total value can
be reasonably determined, the conditions that lead to completion will
occur imminently, and the conditions are within the control of the
acquiring party.
(2) Example: Corporation A, a foreign person, proposes to acquire
Corporation B, a U.S. business. The transaction will be effectuated in
two phases. First, Corporation A will acquire 50 percent of the voting
interest of Corporation B in exchange for $30,000,000 (Phase 1). Two
months later, Corporation A will have the option to acquire the
remaining 50 percent of the voting interest of Corporation B in
exchange for another $30,000,000 (Phase 2). The option to convert is
imminent, the option to acquire the remaining voting interest is in the
control of Corporation A, and the amount of voting interest acquired
can be reasonably determined. The value of consideration of Phase 2 is
part of the consideration of the transaction. Assuming no other
relevant facts, the value of the consideration is $60,000,000 (the
total consideration for both stages), and the filing fee is $75,000.
(g) The determination of the value of the transaction for purposes
of calculating the filing fee in no way limits the Committee's
jurisdiction or its authority to review, investigate, mitigate, or take
any other action regarding any covered transaction.
Sec. 800.1104 Manner of payment.
Parties to a transaction must pay any filing fee by electronic
payment. The filing fee must be paid in U.S. dollars. Instructions for
paying filing fees are available on the Committee's section of the
Department of the Treasury website.
Sec. 800.1105 Refunds.
(a) Except as provided in paragraphs (b) and (c) of this section,
the Department of the Treasury shall not refund a filing fee in whole
or in part.
(b) If the Committee determines that the transaction is not a
covered transaction, the filing fee shall be refunded.
(c) In response to a petition by a party, if the Staff Chairperson
determines, based on the information and representations contained in
the voluntary notice, as well as any other information provided by the
parties, that a party or the parties to a transaction paid a filing fee
in an amount greater than required at the time of filing, the
Department of the Treasury shall refund the amount of overpayment to
the party or parties who paid the filing fee.
[[Page 13593]]
Sec. 800.1106 Waiver.
If the Staff Chairperson determines that extraordinary
circumstances relating to national security warrant, the Staff
Chairperson may waive the filing fee in whole or in part and will
notify the parties in writing. No waiver shall be implied, even where
the Staff Chairperson does not reject a voluntary notice under Sec.
800.1108 for failure to pay the filing fee.
Sec. 800.1107 Resubmissions.
The parties to a transaction shall not be required to pay an
additional filing fee in the event that the Staff Chairperson permits
the parties to withdraw and resubmit a notice pursuant to Sec.
800.509(c)(2), unless the Staff Chairperson determines that a material
change to the transaction has occurred, or a material inaccuracy or
omission was made by the parties in information provided to the
Committee, that requires the Committee to consider new information, in
which case the Staff Chairperson will inform the parties in writing.
Sec. 800.1108 Rejection of voluntary notice.
The Staff Chairperson may reject a voluntary notice pursuant to
Sec. 800.504(a) upon a determination that the amount of the filing fee
paid by the parties was insufficient under this section. Prior to
rejecting a notice under this paragraph, the Staff Chairperson shall
inform the parties in writing of the insufficiency of payment and
provide the parties three business days to pay the remainder of the
filing fee. If the Staff Chairperson does not reject a voluntary notice
pursuant to Sec. 800.504(a) upon a determination that the amount of
the filing fee payment paid by the parties was insufficient under this
section, the balance of the fee remains payable unless the Staff
Chairperson notifies the parties in writing that the payment has been
waived in whole or in part.
PART 802--PROVISIONS PERTAINING TO CERTAIN TRANSACTIONS BY FOREIGN
PERSONS INVOLVING REAL ESTATE IN THE UNITED STATES
0
8. The authority citation for part 802 continues to read:
Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.
Subpart E--Notices
Sec. 802.501 [Amended]
0
9. Amend Sec. 802.501:
0
a. In paragraph (a) by adding ``, and paying the fee required under
subpart K of this part'' after ``including the certification required
under paragraph (h) of that section'';
0
b. In paragraph (f) by adding ``, and payment of the fee required
under subpart K of this part,'' after ``including the certification
required by Sec. 800.502(h)''; and
0
10. Amend Sec. 802.502 by revising paragraph (b)(1)(ix) to read as
follows:
Sec. 802.502 Contents of voluntary notices.
* * * * *
(b) * * *
(1) * * *
(ix)(A) The value of the transaction in U.S. dollars, as determined
pursuant to Sec. 802.1103, and the parties' assessment of the
applicable fee due under Sec. 802.1101, including an explanation of
the methodology used to determine such valuation and applicable fee;
and
(B) If different than the value of the transaction provided in
paragraph (b)(1)(ix)(A) of this section, a good faith approximation of
the fair market value of the interest acquired in the covered real
estate in U.S. dollars, as of the date of the notice.
* * * * *
0
11. Amend Sec. 802.503:
0
a. In paragraph (a)(1) by removing the word ``and'';
0
b. By redesignating paragraph (a)(2) as paragraph (a)(3); and
0
c. By adding new paragraph (a)(2).
The addition reads as follows:
Sec. 802.503 Beginning of 45-day review period.
(a) * * *
(2) Confirmed that the applicable fee required under subpart K of
this part has been paid or waived; and
* * * * *
0
12. Amend Sec. 802.504 by redesignating paragraphs (a)(3) and (4) as
paragraphs (a)(4) and (5), respectively, and adding paragraph (a)(3) to
read as follows:
Sec. 802.504 Deferral, rejection, or disposition of certain
voluntary notices.
(a) * * *
(3) Reject any voluntary notice upon determining that the filing
fee paid by the parties was insufficient under subpart K of this part,
subject to Sec. 802.1108.
* * * * *
0
13. Add subpart K to read as follows:
Subpart K--Filing Fees
Sec.
802.1101 Amount of fee.
802.1102 Timing of payment.
802.1103 Valuation.
802.1104 Manner of payment.
802.1105 Refunds.
802.1106 Waiver.
802.1107 Resubmissions.
802.1108 Rejection of voluntary notice.
Subpart K--Filing Fees
Sec. 802.1101 Amount of fee.
The parties filing a voluntary notice of a transaction with the
Committee under Sec. 802.501(a) shall pay a filing fee as follows:
(a) Where the value of the transaction is less than $500,000: No
fee;
(b) Where the value of the transaction is equal to or greater than
$500,000 but less than $5,000,000: $750;
(c) Where the value of the transaction is equal to or greater than
$5,000,000 but less than $50,000,000: $7,500;
(d) Where the value of the transaction is equal to or greater than
$50,000,000 but less than $250,000,000: $75,000;
(e) Where the value of the transaction is equal to or greater than
$250,000,000 but less than $750,000,000: $150,000;
(f) Where the value of the transaction is equal to or greater than
$750,000,000: $300,000.
Sec. 802.1102 Timing of payment.
Subject to Sec. 802.1106 through Sec. 802.1108, the Staff
Chairperson shall not accept a voluntary notice under Sec. 802.503(a)
until payment of any fee required under this section is received by the
Department of the Treasury in the manner specified on the Committee's
section of the Department of the Treasury website.
Sec. 802.1103 Valuation.
Except as provided in paragraph (e) of this section, the value of
the transaction for purposes of determining the required fee amount in
this section shall be determined as follows:
(a) For a transaction structured as a purchase, by the total value
of all consideration that has been or will be provided in the context
of the transaction by or on behalf of the foreign person that is a
purchaser in the transaction, including cash, assets, shares or other
ownership interests, debt forgiveness, or services or other in-kind
consideration.
(b) For a transaction structured as a lease, by the value of the
sum of, as applicable:
(1) Any fixed payments to be paid by the foreign person that is a
lessee in the transaction to, or for the benefit of, the lessor over
the term of the lease;
(2) Any variable payments that depend on an index or a rate (such
as a market interest rate) to be paid by the foreign person that is a
lessee in the transaction to, or for the benefit of, the lessor, over
the term of the lease, measured for purposes of this section by
[[Page 13594]]
using the index or rate as of the date the parties file the notice; and
(3) Any non-cash or in-kind consideration to be provided by the
foreign person that is a lessee in the transaction to, or for the
benefit of, the lessor, over the term of the lease, as may be
reasonably determined as of the date the parties file the notice.
(c) For a transaction structured as a concession, by the value of
the sum of all rent, fees, and charges to be paid by the foreign person
to the grantor and any non-cash or in-kind consideration to be provided
by such foreign person to, or for the benefit of, the grantor, over the
term of a concession agreement, as may be reasonably determined as of
the date the parties file the notice.
(d) Determining the value of consideration:
(1) Where the consideration includes securities traded on a
national securities exchange, the value of the securities is the
closing price on the national securities exchange on which the
securities are primarily traded on the trading day immediately prior to
the date the parties file the voluntary notice with the Committee
pursuant to Sec. 802.501(a), or if the securities were not traded on
that day, the last published closing price.
(2) Where the consideration includes other non-cash assets,
services, or interests, including real property contributed by a
foreign person that is party to a transaction involving the exchange of
land or contribution to a joint venture, the value of the assets,
service, or interests is their fair market value at the time of filing.
(3) Where the transaction is a lending transaction, the value of
the consideration is the cash value of the mortgage, loan, or similar
financing arrangement, made available or provided by or on behalf of
the foreign person that is a party to the transaction.
(4) Where the transaction arises from the conversion of a
contingent equity interest previously acquired by a foreign person that
is a party to the transaction, the value of the transaction includes
the consideration that was paid by or on behalf of the foreign person
to initially acquire the contingent equity interest, in addition to any
other consideration.
(e) Exceptions:
(1) In the case of a purchase, where the consideration to be
provided by the foreign person has not been, or cannot reasonably be
determined as of the date the parties file the notice, the value of the
transaction is the fair market value of the assets being purchased in
the transaction as of the date the parties file the notice.
Note 1 to Sec. 802.1103(e)(1): The consideration amount may be
determined notwithstanding minor standard adjustments that are to be
made at closing.
(2) In the case of a lease or concession, where the consideration
to be provided by the foreign person has not been, or cannot reasonably
be determined at the time of filing, or, where the parties cannot
reasonably determine the value of rent, fees, charges, or services
pursuant to paragraph (c) of this section, the filing fee required
shall be that required under Sec. 802.1101(b).
(f) The Staff Chairperson is not bound by the parties'
characterization of the transaction and its value or their good faith
approximation provided to the Committee pursuant to Sec.
802.502(b)(1)(ix).
(g) Fair market value means the price that would be received in
exchange for sale of an asset or interest, or paid to convey a service
or to transfer liability, in an orderly transaction between market
participants.
(1) In determining the fair market value of assets or interests,
parties shall make a good faith estimate and generally may rely on the
last valuation as presented in financial statements prepared in
accordance with generally accepted accounting principles (GAAP) or
other widely recognized accounting principles, such as the
International Financial Reporting Standards (IFRS), or the valuation of
an independent appraiser; provided, however, that if no valuation has
occurred within the prior two fiscal quarters, or if there have been
significant changes to the fair market value since the last valuation,
the parties shall make a good faith estimate at the time of filing, or,
if the parties are filing after completion of the transaction, the date
the transaction was completed.
(2) In determining the fair market value of services, the parties
may rely upon the value of services determined by the parties as set
forth in an executed written agreement, or make an estimate at the time
of filing based upon rates charged to third parties or recent industry
reports or other sources of comparable commercial data; provided,
however, if such sources are unavailable, the parties shall make a good
faith estimate. If the parties are filing after completion of the
transaction, the parties shall make an estimate of the fair market
value as of the date the transaction was completed.
(h) Examples:
(1) Example 1. Corporation A, a foreign person, enters into an
agreement for the purchase of a parcel of covered real estate (Parcel
X) from Corporation B. The purchase is a covered real estate
transaction. The fair market value of Parcel X is $37,000,000. In
exchange for ownership of Plot X, Corporation A forgives a debt owed to
it by Corporation B that is valued at $5,000,000 and pays $35,000,000
to Corporation B. Assuming no other relevant facts, the value of the
transaction is $40,000,000, and the filing fee is $7,500.
(2) Example 2. Corporation A, a foreign person, enters into an
agreement to lease a parcel of covered real estate from Corporation B.
The lease is a covered real estate transaction. Pursuant to a signed
agreement, Corporation A will pay Corporation B a fixed annual payment
of $300,000 for a term of three years, with an option to renew the
lease at the end of the term. Assuming no other relevant facts, the
value of the transaction is $900,000, and the filing fee is $750.
(3) Example 3. Corporation A, a foreign person, proposes to enter
into a concession agreement with a U.S. public entity for the right to
use certain covered real estate for the purpose of developing and
operating terminal infrastructure at a covered port. The concession is
a covered real estate transaction. The concession agreement is for a
five-year term. Under the concession agreement, Corporation A will pay
the U.S. public entity a use charge of $450,000 per year starting in
the second year. The concession agreement also requires Corporation A
to pay utility fees and common area maintenance charges of $5,000 per
month for the full concession term. Terminal development is scheduled
to be completed 12 months after signing of the concession agreement,
and Corporation A intends to commence operations immediately. Assuming
no other relevant facts, the value of the transaction is $2,100,000,
based on the $1,800,000 use charge and $300,000 in utility fees. The
filing fee is $750.
(4) Example 4. Corporation A, a foreign person, pays a lease bonus
of $1,000 per acre as an inducement to execute an oil, gas and mineral
lease with respect to a 10-acre parcel of covered real estate. The
lease has a 10-year term. Corporation A must pay a royalty of 12.5% in
amount or value of oil or gas production removed or sold from the
leased land. Prior to such production, the foreign person is obligated
to pay a delay rental fee of $1,000 per acre per year for the first
five years and $2,000 per acre thereafter. A minimum royalty in lieu of
the delay rental fee is due once oil or gas has been discovered on the
leased land, equal to
[[Page 13595]]
the annual delay rental fee that would otherwise have been due.
Assuming no other relevant facts, the value of the transaction is
$160,000 and there is no filing fee.
(i) Timing rule for calculation of filing fee:
(1) Where a transaction will be effectuated in multiple phases or
involves the acquisition of contingent equity interests, the value of
the transaction is the total value of the transaction including the
multiple phases or contingent equity interests, if such total value can
be reasonably determined, the conditions that lead to completion will
occur imminently, and the conditions are within the control of the
acquiring party.
(2) Example: Corporation A, a foreign person, proposes to purchase
Plot X and acquire an option to purchase Plot Y, both of which are
covered real estate. The transaction will be completed in two phases.
First, Corporation A will acquire Plot X and the option related to Plot
Y in exchange for $30,000,000 (Phase 1). Corporation A informs its
shareholders that within two months, Corporation A will exercise its
option to purchase Plot Y in exchange for another $30,000,000 (Phase
2). The second purchase is imminent and in the control of Corporation
A, and the value of acquisition can be reasonably determined. Assuming
no other relevant facts, the value of the consideration is $60,000,000
(the total consideration for both phases), and the filing fee is
$75,000.
(j) The determination of the value of the transaction for purposes
of calculating the filing fee in no way limits the Committee's
jurisdiction or its authority to review, investigate, mitigate, or take
any other action regarding any covered real estate transaction.
Sec. 802.1104 Manner of payment.
Parties to a transaction must pay any filing fee by electronic
payment. The filing fee must be paid in U.S. dollars. Instructions for
paying filing fees are available on the Committee's section of the
Department of the Treasury website.
Sec. 802.1105 Refunds.
(a) Except as provided in this paragraph, the Department of the
Treasury shall not refund a filing fee in whole or in part.
(b) If the Committee determines that the transaction is not a
covered real estate transaction, the filing fee shall be refunded.
(c) In response to a petition by a party, if the Staff Chairperson
determines, based on the information and representations contained in
the voluntary notice, as well as any other information provided by the
parties, that a party or the parties to a transaction paid a filing fee
in an amount greater than required at the time of filing, the
Department of the Treasury shall refund the amount of overpayment to
the party or parties who paid the filing fee.
Sec. 802.1106 Waiver.
If the Staff Chairperson determines that extraordinary
circumstances relating to national security warrant, the Staff
Chairperson may waive the filing fee in whole or in part and will
notify the parties in writing. No waiver shall be implied by the
parties, even where the Staff Chairperson does not reject a voluntary
notice under Sec. 802.1108 for failure to pay the filing fee.
Sec. 802.1107 Resubmissions.
The parties to a transaction shall not be required to pay an
additional filing fee in the event that the Staff Chairperson permits
the parties to withdraw and resubmit a notice pursuant to Sec.
802.509(c)(2), unless the Staff Chairperson determines that a material
change to the transaction has occurred, or a material inaccuracy or
omission was made by the parties in information provided to the
Committee, that requires the Committee to consider new information, in
which case the Staff Chairperson will inform the parties in writing.
Sec. 802.1108 Rejection of voluntary notice.
The Staff Chairperson may reject a voluntary notice pursuant to
Sec. 802.504(a) upon a determination that the amount of the filing fee
paid by the parties was insufficient under this section. Prior to
rejecting a notice under this paragraph, the Staff Chairperson shall
inform the parties in writing of the insufficiency of payment and
provide the parties three business days to pay the remainder of the
filing fee. If the Staff Chairperson does not reject a voluntary notice
pursuant to Sec. 802.504(a) upon a determination that the amount of
the filing fee payment paid by the parties was insufficient under this
section, the balance of the fee remains payable unless the Staff
Chairperson notifies the parties in writing that the payment has been
waived in whole or in part.
Dated: March 2, 2020.
Thomas Feddo,
Assistant Secretary for Investment Security.
[FR Doc. 2020-04641 Filed 3-4-20; 4:15 pm]
BILLING CODE 4810-25-P