[Federal Register Volume 72, Number 183 (Friday, September 21, 2007)]
[Proposed Rules]
[Pages 53970-53973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18592]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 72, No. 183 / Friday, September 21, 2007 / 
Proposed Rules  

[[Page 53970]]



DEPARTMENT OF COMMERCE

Bureau of Economic Analysis

15 CFR Part 806

[Docket No. 070301044-7045-01]
RIN 0691-AA64


Direct Investment Surveys: BE-12, 2007 Benchmark Survey of 
Foreign Direct Investment in the United States

AGENCY: Bureau of Economic Analysis, Commerce.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: This proposed rule would amend regulations concerning the 
reporting requirements for the BE-12, Benchmark Survey of Foreign 
Direct Investment in the United States. The BE-12 survey is conducted 
once every 5 years and covers virtually the entire universe of foreign 
direct investment in the United States in terms of value. The benchmark 
survey will be conducted for 2007. To address the current needs of data 
users while at the same time keeping the respondent burden as low as 
possible, BEA proposes modification, addition, or deletion of several 
items on the survey forms and changes in the reporting criteria.
    Changes proposed by BEA in the reporting requirements in this 
proposed rule are: (a) Increasing the exemption level for reporting on 
the BE-12(LF) long form from $125 million to $175 million; (b) 
increasing the exemption level for reporting on the BE-12(SF) short 
form from $10 million to $40 million; and (c) increasing the exemption 
level for reporting on the BE-12 Bank form from $10 million to $15 
million. In addition, BEA proposes to amend Form BE-12(X) by: (1) re-
naming it the Form BE-12 Claim for Not Filing and (2) deleting several 
questions, which will be moved to a new Form BE-12 Mini. The Claim for 
Not Filing would be completed only by persons that are not subject to 
the reporting requirements of the BE-12 survey but have been contacted 
by BEA concerning their reporting status. The BE-12 Mini is an 
abbreviated form for reporting U.S. affiliates with total assets, sales 
or gross operating revenues, and net income (loss) less than or equal 
to $40 million.

DATES: Comments on the proposed rules will receive consideration if 
submitted in writing on or before 5 p.m. November 20, 2007.

ADDRESSES: You may submit comments, identified by RIN 0691-AA64, and 
referencing the agency name (Bureau of Economic Analysis), by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. For agency, select 
``Commerce Department--all.''
     E-mail: [email protected].
     Fax: Office of the Chief, Direct Investment Division, 
(202) 606-5318.
     Mail: Office of the Chief, Direct Investment Division, 
U.S. Department of Commerce, Bureau of Economic Analysis, BE-50, 
Washington, DC 20230.
     Hand Delivery/Courier: Office of the Chief, Direct 
Investment Division, U.S. Department of Commerce, Bureau of Economic 
Analysis, BE-50, Shipping and Receiving, Section M100, 1441 L Street 
NW., Washington, DC 20005.
    Public Inspection: Comments may be inspected at BEA's offices, 1441 
L Street, NW., Room 7005, between 8:30 a.m. and 5 p.m., Eastern Time 
Monday through Friday.

FOR FURTHER INFORMATION CONTACT: David H. Galler, Chief, Direct 
Investment Division (BE-50), Bureau of Economic Analysis, U.S. 
Department of Commerce, Washington, DC 20230; phone (202) 606-9835.

SUPPLEMENTARY INFORMATION: This proposed rule would amend 15 CFR 806.17 
to set forth the reporting requirements for the BE-12, 2007 Benchmark 
Survey of Foreign Direct Investment in the United States, and 15 CFR 
806.18 to list the OMB control number for this survey. The Department 
of Commerce, as part of its continuing effort to reduce paperwork and 
respondent burden, invites the general public and other Federal 
agencies to comment on proposed and/or continuing information 
collections, as required by the Paperwork Reduction Act of 1995.

Description of Changes

    The BE-12 benchmark survey is a mandatory survey and is conducted 
once every five years by BEA under the authority of the International 
Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), 
hereinafter, ``the Act.'' BEA will send the survey to potential 
respondents in March 2008; responses will be due by May 31, 2008.
    BEA maintains a continuing dialogue with respondents and with data 
users, including its own internal users, to ensure that, as much as 
possible, the required data serve their intended purposes and are 
available from existing records, that instructions are clear, and that 
unreasonable burdens are not imposed. In reaching decisions on what 
questions to include in the survey, BEA considered the Government's 
need for the data, the burden imposed on respondents, the quality of 
the likely responses (e.g., whether the data are readily available on 
respondents' books), and BEA's experience in previous benchmark and 
related annual surveys.
    To reduce respondent burden, particularly for small companies, BEA 
proposes the following changes to the Code of Federal Regulations: (1) 
Increase the exemption level for reporting on the BE-12(LF) long form 
from $125 million to $175 million; (2) increase the exemption level for 
reporting on the BE-12(SF) short form from $10 million to $40 million; 
and (3) increase the exemption level for reporting on the BE-12 Bank 
form from $10 million to $15 million. In addition, BEA proposes to 
amend Form BE-12(X) by: (1) Re-naming it the Form BE-12 Claim for Not 
Filing and (2) deleting several questions, which will be moved to a new 
Form BE-12 Mini. The Claim for Not Filing would be completed only by 
persons that are not subject to the reporting requirements of the BE-12 
survey but have been contacted by BEA concerning their reporting 
status. The BE-12 Mini is a new abbreviated form for reporting U.S. 
affiliates with total assets, sales or gross operating revenues, and 
net income (loss) less than or equal to $40 million. U.S. affiliates 
with assets, sales, and net income (loss) less than or equal to $15 
million would be required to report only selected items on the BE-12 
Mini.

[[Page 53971]]

    In addition to these changes in the reporting criteria, BEA 
proposes several additions and subtractions of questions in order to 
respond to current needs of data users, while keeping the respondent 
burden roughly constant. Among the additions, BEA proposes to add 
questions to the BE-12(LF) long form, BE-12(SF) short form, and BE-12 
Bank form to: (1) Collect detail on the broad occupational structure of 
employment, (2) identify companies that engage in cross-border services 
transactions, and (3) identify the financial reporting standards used 
to compile and report the survey. For the BE-12(LF) long form, BEA 
proposes to add questions to collect additional detail on the 
composition of external finances, trade, and research and development. 
For the BE-12(SF) short form, BEA proposes to add questions to collect 
sales of goods, sales of services, and investment income for majority-
owned U.S. affiliates, including sales of services to U.S. persons and 
to foreign persons. For the BE-12 Bank form, BEA proposes to add 
questions to make it easier to integrate data collected for banks with 
data collected for nonbank U.S affiliates. The items proposed to be 
collected on this form include those needed to calculate value added as 
well as expenditures for property, plant, and equipment; sales of 
goods; and sales of services to the foreign parent group(s), to foreign 
affiliates owned by the U.S. affiliate, and to other foreign persons.
    To offset the burden imposed by these additional questions, BEA 
proposes to discontinue collecting information on U.S. trade in goods 
by product, which had been collected on the BE-12(LF) long form, and to 
reduce the amount of detail collected for minority-owned U.S. 
affiliates on the BE-12(SF) short form and BE-12 Bank form. In 
addition, questions on services transactions between U.S. affiliates 
and their foreign parent group(s) would be dropped from the BE-12 
survey because collection of this information has been shifted to BEA's 
surveys of cross-border transactions in services and intangible assets 
(the BE-120, BE-125, and BE-185).

Survey Background

    The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, 
will conduct the survey under the authority of the International 
Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), 
hereinafter, ``the Act.'' Section 4(b) of the Act provides that with 
respect to foreign direct investment in the United States, the 
President shall conduct a benchmark survey covering year 1980, a 
benchmark survey covering year 1987, and benchmark surveys covering 
every fifth year thereafter. In conducting surveys pursuant to this 
subsection, the President shall, among other things and to the extent 
he determines necessary and feasible--
    (1) Identify the location, nature, and magnitude of, and changes in 
the total investment by any parent in each of its affiliates and the 
financial transactions between any parent and each of its affiliates;
    (2) Obtain (A) Information on the balance sheet of parents and 
affiliates and related financial data, (B) income statements, including 
the gross sales by primary line of business (with as much product line 
detail as is necessary and feasible) of parents and affiliates in each 
country in which they have significant operations, and (C) related 
information regarding trade, including trade in both goods and 
services, between a parent and each of its affiliates and between each 
parent or affiliate and any other person;
    (3) Collect employment data showing both the number of United 
States and foreign employees of each parent and affiliate and the 
levels of compensation, by country, industry, and skill level;
    (4) Obtain information on tax payments by parents and affiliates by 
country; and
    (5) Determine, by industry and country, the total dollar amount of 
research and development expenditures by each parent and affiliate, 
payments or other compensation for the transfer of technology between 
parents and their affiliates, and payments or other compensation 
received by parents or affiliates from the transfer of technology to 
other persons.
    In Section 3 of Executive Order 11961, as amended by Executive 
Orders 12318 and 12518, the President delegated the responsibility for 
performing functions under the Act concerning direct investment to the 
Secretary of Commerce, who has redelegated it to BEA.
    The benchmark surveys are BEA's censuses, intended to cover the 
universe of foreign direct investment in the United States in terms of 
value, and are BEA's most comprehensive surveys of such investment in 
terms of subject matter. Foreign direct investment in the United States 
is defined as the ownership or control, directly or indirectly, by one 
foreign person (foreign parent) of 10 percent or more of the voting 
securities of an incorporated U.S. business enterprise or an equivalent 
interest in an unincorporated U.S. business enterprise, including a 
branch.
    The purpose of the benchmark survey is to obtain universe data on 
the financial and operating characteristics of U.S. affiliates, and on 
positions and transactions between U.S. affiliates and their foreign 
parent groups (which are defined to include all foreign parents and 
foreign affiliates of foreign parents). These data are needed to 
measure the size and economic significance of foreign direct investment 
in the United States, measure changes in such investment, and assess 
its impact on the U.S. economy. Such data are generally found in 
enterprise-level accounting records of respondent companies. These data 
are used to derive current universe estimates of direct investment from 
sample data collected in other BEA surveys in nonbenchmark years. In 
particular, they would serve as benchmarks for the quarterly direct 
investment estimates included in the U.S. international transactions 
and national income and product accounts, and for annual estimates of 
the foreign direct investment position in the United States and of the 
operations of the U.S. affiliates of foreign companies.
    As proposed, the survey would consist of a number of report forms 
and a claim for not filing. The amount and type of data required to be 
reported will vary according to the size of the U.S. affiliate, whether 
it is a bank or a nonbank, and whether or not it is majority-owned by 
foreign direct investors. The report forms that would be used in the 
survey consist of the following:
    1. Form BE-12(LF) long form--Report for a majority-owned nonbank 
U.S. affiliate (a majority-owned U.S. affiliate is one in which the 
combined direct and indirect ownership interest of all foreign parents 
of the U.S. affiliate exceeds 50 percent) with total assets, sales or 
gross operating revenues, or net income greater than $175 million 
(positive or negative);
    2. Form BE-12(SF) short form--Report for (1) a majority-owned 
nonbank U.S. affiliate with total assets, sales or gross operating 
revenues, or net income greater than $40 million (positive or 
negative), but not greater than $175 million (positive or negative), 
and (2) a minority-owned nonbank U.S. affiliate (owned 50 percent or 
less) with total assets, sales or gross operating revenues, or net 
income greater than $40 million (positive or negative);
    3. Form BE-12 Bank--Report for a U.S. affiliate that is a bank; and
    4. Form BE-12 Mini--Report for a nonbank U.S. affiliate with total 
assets, sales or gross operating revenues, and net income (positive or 
negative) less than or equal to $40 million.

[[Page 53972]]

    The Form BE-12 Claim for Not Filing will be provided for response 
by persons that are not subject to the reporting requirements of the 
BE-12 survey but have been contacted by BEA concerning their reporting 
status.

Executive Order 12866

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

Executive Order 13132

    This proposed rule does not contain policies with Federalism 
implications sufficient to warrant preparation of a Federalism 
assessment under E.O. 13132.

Paperwork Reduction Act

    This proposed rule contains a new collection-of-information 
requirement subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA). The 
requirement has been submitted to OMB for approval as a reinstatement, 
with change, of a previously approved collection for which approval has 
expired under OMB control number 0608-0042. BEA proposes to amend Form 
BE-12(X) by: (1) Re-naming it the Form BE-12 Claim for Not Filing and 
(2) deleting several questions, which will be moved to a new Form BE-12 
Mini. The Claim for Not Filing would be completed only by persons that 
are not subject to the reporting requirements of the BE-12 survey but 
have been contacted by BEA concerning their reporting status. The BE-12 
Mini is an abbreviated form for reporting U.S. affiliates with total 
assets, sales or gross operating revenues, and net income (loss) less 
than or equal to $40 million. U.S. affiliates with assets, sales, and 
net income (loss) less than or equal to $15 million would be required 
to report only selected items on the BE-12 Mini.
    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection-of-information subject to the 
requirements of the Paperwork Reduction Act unless that collection 
displays a currently valid OMB control number.
    The BE-12 survey, as proposed, is expected to result in the filing 
of reports from approximately 18,550 respondents. The respondent burden 
for this collection of information is estimated to vary from 20 minutes 
to 715 hours per response, with an average of 11.3 hours per response, 
including time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Thus, the total respondent 
burden for the survey is estimated at 209,650 hours (18,550 times 11.3 
hours average burden).
    Comments are requested concerning: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) the accuracy of the burden estimate; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. 
Comments should be addressed to: Director, Bureau of Economic Analysis 
(BE-1), U.S. Department of Commerce, Washington, DC 20230; FAX: 202-
606-5311; and to the Office of Management and Budget, O.I.R.A., 
Paperwork Reduction Project 0608-0042, Attention PRA Desk Officer for 
BEA, via e-mail at [email protected], or by FAX at 202-395-7245.

Regulatory Flexibility Act

    The Chief Counsel for Regulation, Department of Commerce, has 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, under provisions of the Regulatory Flexibility Act (5 
U.S.C. 605(b)) that this proposed rulemaking, if adopted, will not have 
a significant economic impact on a substantial number of small 
entities. The changes proposed in this rule are discussed in the 
preamble and are not repeated here.
    A BE-12 report is required of any U.S. company in which a foreign 
person owned or controlled, directly or indirectly, 10 percent or more 
of the voting securities if an incorporated U.S. business enterprise, 
or an equivalent interest if an unincorporated U.S. business 
enterprise. Most small business are not foreign owned and therefore 
would not be required to submit a BE-12 survey. However, for those 
small business that are foreign owned, the reporting burden is 
estimated to be small.
    To minimize the reporting burden on smaller U.S. companies that are 
foreign owned and are required to report, BEA would increase the 
exemption level for reporting on the BE-12(SF) short form from $10 
million to $40 million and would implement a new abbreviated form, Form 
BE-12 Mini for those companies with total assets, sales or gross 
operating revenues, and net income less than or equal to $40 million 
(positive or negative). To further reduce reporting burden for smaller 
companies, for those respondents who are majority-owned nonbank U.S. 
companies with total assets, sales, and net income between $40 million 
and $175 million (positive or negative), BEA would require these 
companies to report on the BE-12(SF) short form.
    Because few small businesses are impacted by this rule, and because 
those small businesses that are impacted are subject to only minimal 
recordkeeping burdens, the Chief Counsel for Regulation certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities.

List of Subjects in 15 CFR Part 806

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

    Dated: September 17, 2007.
J. Steven Landefeld,
Director, Bureau of Economic Analysis.

    For the reasons set forth in the preamble, BEA proposes to amend 15 
CFR part 806 as follows:

PART 806--DIRECT INVESTMENT SURVEYS

    1. The authority citation for 15 CFR part 806 continues to read as 
follows:

     Authority: 5 U.S.C. 301; 22 U.S.C. 3101--3108; and E.O. 11961 
(3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 
Comp., p. 173), and E.O. 12518 (3 CFR, 1985 Comp., p. 348).

    2. Sections 806.17 and 806.18 are revised to read as follows:


Sec.  806.17  Rules and regulations for BE-12, 2007 Benchmark Survey of 
Foreign Direct Investment in the United States.

    A BE-12, Benchmark Survey of Foreign Direct Investment in the 
United States will be conducted covering 2007. All legal authorities, 
provisions, definitions, and requirements contained in Sec.  806.1 
through Sec.  806.13 and Sec.  806.15(a) through (g) are applicable to 
this survey. Specific additional rules and regulations for the BE-12 
survey are given in this section.
    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-12, 2007 Benchmark Survey of 
Foreign Direct Investment in the United States, contained in this 
section, whether or not they are contacted by BEA. Also, a person, or 
their agent, contacted by BEA about reporting in this survey, either by 
sending them a report form or by written inquiry, must respond pursuant

[[Page 53973]]

to Sec.  806.4. This may be accomplished by:
    (1) Filing the properly completed BE-12 report--Form BE-12(LF), 
Form BE-12(SF), Form BE-12 Mini, or Form BE-12 Bank, by May 31, 2008, 
as required;
    (2) Completing and returning the Form BE-12 Claim for Not Filing by 
the due date of the survey; or
    (3) Certifying in writing, by the due date of the survey, to the 
fact that the person is not a U.S. affiliate of a foreign person and 
not subject to the reporting requirements of the BE-12 survey.
    (b) Who must report. A BE-12 report is required for each U.S. 
affiliate, that is, for each U.S. business enterprise in which a 
foreign person (foreign parent) owned or controlled, directly or 
indirectly, 10 percent or more of the voting securities in an 
incorporated U.S. business enterprise, or an equivalent interest in an 
unincorporated U.S. business enterprise, at the end of the business 
enterprise's fiscal year that ended in calendar year 2007. A BE-12 
report is required even if the foreign person's ownership interest in 
the U.S. business enterprise was established or acquired during the 
2007 reporting year. Beneficial, not record, ownership is the basis of 
the reporting criteria.
    (c) Forms to be filed. (1)--Form BE-12(LF) long form must be 
completed by a U.S. affiliate that was majority-owned by one or more 
foreign parents (for purposes of this survey, a ``majority-owned'' U.S. 
affiliate is one in which the combined direct and indirect ownership 
interest of all foreign parents of the U.S. affiliate exceeds 50 
percent), if:
    (i) It is not a bank and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, any one of the following three 
items for the U.S. affiliate (not just the foreign parent's share), was 
greater than $175 million (positive or negative) at the end of, or for, 
its fiscal year that ended in calendar year 2007:
    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes; or
    (C) Net income after provision for U.S. income taxes.
    (2) Form BE-12(SF) short form must be completed by a U.S. affiliate 
if:
    (i) It is not a bank and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, any one of the three items listed 
in paragraph (c)(1)(ii) of this section for a majority-owned U.S. 
affiliate (not just the foreign parent's share), was greater than $40 
million (positive or negative) but none of these items was greater than 
$175 million (positive or negative) at the end of, or for, its fiscal 
year that ended in calendar year 2007.
    (iii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, any one of the three items listed 
in paragraph (c)(1)(ii) of this section for a minority-owned U.S. 
affiliate (not just the foreign parent's share), was greater than $40 
million (positive or negative) at the end of, or for, its fiscal year 
that ended in calendar year 2007. (A ``minority-owned'' U.S. affiliate 
is one in which the combined direct and indirect ownership interest of 
all foreign parents of the U.S. affiliate is 50 percent or less.)
    (3) Form BE-12 Mini must be completed by a U.S. affiliate if:
    (i) It is not a bank, and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, none of the three items listed in 
paragraph (c)(1)(ii) of this section for a U.S. affiliate (not just the 
foreign parent's share), was greater than $40 million (positive or 
negative) at the end of, or for, its fiscal year that ended in calendar 
year 2007.
    (4) Form BE-12 Bank must be completed by a U.S. affiliate if:
    (i) The U.S. affiliate is a bank. For purposes of the BE-12 survey, 
a ``bank'' is a business entity engaged in deposit banking or closely 
related functions, including commercial banks, Edge Act corporations 
engaged in international or foreign banking, U.S. branches and agencies 
of foreign banks whether or not they accept domestic deposits, savings 
and loans, savings banks, bank holding companies and financial holding 
companies under the Gramm-Leach-Bliley Act, including all subsidiaries 
or units of a bank holding company or financial holding company, and
    (ii) On a fully consolidated basis any one of the three items 
listed in paragraph (c)(1)(ii) of this section for a U.S. affiliate 
(not just the foreign parent's share), was greater than $15 million 
(positive or negative) at the end of, or for, its fiscal year that 
ended in calendar year 2007.
    (5) Form BE-12 Claim for Not Filing will be provided for response 
by persons that are not subject to the reporting requirements of the 
BE-12 survey but have been contacted by BEA concerning their reporting 
status.
    (d) Aggregation of real estate investments. All real estate 
investments of a foreign person must be aggregated for the purpose of 
applying the reporting criteria. A single report form must be filed to 
report the aggregate holdings, unless written permission has been 
received from BEA to do otherwise. Those holdings not aggregated must 
be reported separately on the same type of report that would have been 
required if the real estate holdings were aggregated.
    (e) Due date. A fully completed and certified Form BE-12(LF), BE-
12(SF), BE-12 Mini, BE-12 BANK, or Form BE-12 Claim for Not Filing is 
due to be filed with BEA not later than May 31, 2008.


Sec.  806.18  OMB control numbers assigned to the Paperwork Reduction 
Act.

    (a) Purpose. This section will comply with the requirements of 
section 3507(f) of the Paperwork Reduction Act (PRA) which requires 
agencies to display a current control number assigned by the Director 
of OMB for each agency information collection requirement.
    (b) Display.

------------------------------------------------------------------------
                                                            Current OMB
     15 CFR section where  identified and described         control No.
------------------------------------------------------------------------
806.1 through 806.17....................................       0608-0020
                                                                    0024
                                                                    0032
                                                                    0004
                                                                    0035
                                                                    0030
                                                                    0009
                                                                    0023
                                                                    0034
                                                                    0042
                                                                    0053
------------------------------------------------------------------------

 [FR Doc. E7-18592 Filed 9-20-07; 8:45 am]
BILLING CODE 3510-06-P