[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Proposed Rules]
[Pages 30503-30506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12159]


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DEPARTMENT OF COMMERCE

Bureau of Economic Analysis

15 CFR Part 801

[Docket No. 140424374-4374-01]
RIN 0691-XC025


Direct Investment Surveys: BE-13, Survey of New Foreign Direct 
Investment in the United States

AGENCY: Bureau of Economic Analysis, Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would amend regulations of the Department 
of Commerce's Bureau of Economic Analysis (BEA) to reinstate the 
reporting requirements for the BE-13, Survey of New Foreign Direct 
Investment in the United States, which was discontinued in 2009. BEA is 
proposing to reinstate this survey to better measure Commerce 
Department efforts through the ``Build It Here, Sell It Everywhere'' 
initiative to expand foreign business investment in the United States 
and to ensure complete coverage of BEA's other foreign direct 
investment statistics. This survey will collect information on the 
acquisition or establishment of U.S. business enterprises by foreign 
investors, which was collected on the previous BE-13 survey, and 
information on expansions by existing U.S. affiliates of foreign 
companies, which was not previously collected. This mandatory survey 
would be conducted under the authority of the International Investment 
and Trade in Services Survey Act (the Act). Unlike other BEA surveys 
conducted pursuant to the Act, a response would be required from 
persons subject to the reporting requirements of the BE-13, Survey of 
New Foreign Direct Investment in the United States, whether or not they 
are contacted by BEA, in order to insure that respondents subject to 
the requirements for foreign direct investments in the U.S. are 
identified.

DATES: Comments on this proposed rule will receive consideration if 
submitted in writing on or before 5:00 p.m. July 28, 2014.

ADDRESSES: You may submit comments, identified by RIN 0691-XC025, 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 Keyword or ID, 
enter ``EAB-2014-0001.''
     Email: [email protected].
     Fax: Office of the Chief, Direct Investment Division, 
(202) 606-2894.
     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.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in the 
proposed rule should be sent to both BEA through any of the methods 
above and to the Office of Management and Budget (OMB), OIRA, Paperwork 
Reduction Project 0608-0035, Attention PRA Desk Officer for BEA, via 
email at [email protected], or by FAX at 202-395-7245.

[[Page 30504]]

    Public Inspection: All comments received are a part of the public 
record and will generally be posted to http://www.regulations.gov 
without change. All personal identifying information (for example, 
name, address, etc.) voluntarily submitted by the commentator may be 
publicly accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. BEA will accept anonymous 
comments (enter N/A in required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe portable document file (pdf) formats 
only.

FOR FURTHER INFORMATION CONTACT: Barbara Hubbard, Chief, Direct 
Transactions and Positions Branch (BE-49NI), Bureau of Economic 
Analysis, U.S. Department of Commerce, Washington, DC 20230; phone 
(202) 606-9846.

SUPPLEMENTARY INFORMATION: BEA will conduct the BE-13 survey under the 
authority of the International Investment and Trade in Services Survey 
Act (22 U.S.C. 3101-3108). Section 4(a) of the Act provides that the 
President shall, to the extent he deems necessary and feasible,
    (1) conduct a regular data collection program to secure current 
information on international capital flows and information related to 
international investment and trade in services, including (but not 
limited to) such information as may be necessary for computing and 
analyzing the United States balance of payments, employment and taxes 
of United States parent and affiliates, and the international 
investment and trade in services position of the United States;
    (2) conduct such studies and surveys as may be necessary to prepare 
reports in a timely manner on specific aspects of international 
investment and trade in services which may have significant 
implications for the economic welfare and national security of the 
United States.
    In Section 3 of Executive Order 11961, the President delegated the 
responsibility for performing functions under the Act concerning direct 
investment to the Secretary of Commerce, who has redelegated the 
responsibility to BEA.
    By rule issued in 2012 (77 FR 24373), BEA established guidelines 
for collecting data on international trade in services and direct 
investment through notices, rather than through rulemaking. This 
proposed rule would amend the regulations to provide for a revised BE-
13 survey and to require a response from persons subject to the 
reporting requirements of the BE-13, whether or not they are contacted 
by BEA, in order to ensure complete coverage of new foreign direct 
investments.
    The BE-13, Survey of New Foreign Direct Investment in the United 
States, was a mandatory survey and was conducted pursuant to the 
International Investment and Trade in Services Survey Act, 22 U.S.C. 
3101-3108 (the Act). In 2009, BEA discontinued the BE-13 survey due to 
budget reductions. To better measure the results of Commerce's 
investment promotion efforts, BEA is seeking to reinstate the survey 
with a new questionnaire covering expansions of foreign-owned U.S. 
companies.
    The purpose of the BE-13 survey is to collect data on the 
acquisition or establishment of U.S. business enterprises by foreign 
investors and the expansion of existing U.S. affiliates of foreign 
companies to establish new production facilities. The data collected on 
the survey are used to measure the amount of new foreign direct 
investment in the United States, assess the impact on the U.S. economy, 
and based on this assessment, make informed policy decisions regarding 
foreign direct investment in the United States. Foreign direct 
investment in the United States is defined as the ownership or control, 
directly or indirectly, by one foreign person (foreign parent) of 10 
percent or more of the voting securities of an incorporated U.S. 
business enterprise, or an equivalent interest of an unincorporated 
U.S. business enterprise, including a branch.
    BEA will make the survey available via eFile, BEA's electronic 
filing system. Survey respondents will be notified of their obligation 
to file in November 2014 and BEA will collect data retroactively back 
to January 1, 2014. Thereafter, notifications will be mailed to 
respondents as BEA becomes aware of a potentially reportable investment 
or when annual cost updates are needed. The forms are due no later than 
45 days after the acquisition is completed, the new legal entity is 
established, the expansion is begun, or the cost update is requested.
    This proposed rule would amend 15 CFR 801.7 to set forth the 
reporting requirements for the BE-13, Survey of New Foreign Direct 
Investment in the United States. The Department of Commerce, as part of 
its continuing effort to reduce paperwork and respondent burden, 
invites the general public and other Federal agencies to comment on 
proposed and/or continuing information collections, as required by the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520 (PRA).

Description of Changes

    The proposed changes would amend the regulations and the survey 
forms for the BE-13 survey. These amendments include changes in 
reporting requirements and questionnaire design as well as data items 
collected.
    If this proposed rule is made final, U.S. affiliates would report 
information on expansions, acquisitions, and establishments of U.S. 
business enterprises by foreign investors. Unlike other BEA surveys 
conducted pursuant to the Act, persons subject to the reporting 
requirements of the BE-13, Survey of New Foreign Direct Investment in 
the United States, would be required to respond whether or not they are 
contacted by BEA.
    Depending on the type of investment transaction, U.S. affiliates 
would report their information on one of six forms--BE-13A, BE-13B, BE-
13C, BE-13D, BE-13E, or BE-13 Claim for Exemption. Previously, one form 
was used to collect information on all transaction types; however, 
navigating a single form proved difficult for respondents because the 
type of transaction determined the amount of information required. 
Utilizing separate forms will ease respondent burden by streamlining 
navigation. The proposed reporting requirements for the six forms are:
    (a) Form BE-13A--Report for a U.S. business enterprise when a 
foreign entity acquires a voting interest (directly, or indirectly 
through an existing U.S. affiliate) in that enterprise, segment, or 
operating unit and (i) the total cost of the acquisition is greater 
than $3 million, (ii) the U.S. business enterprise will operate as a 
separate legal entity, and (iii) by this acquisition, at least 10 
percent of the voting interest in the acquired entity is now held 
(directly or indirectly) by the foreign entity.
    (b) Form BE-13B--Report for a U.S. business enterprise when a 
foreign entity, or an existing U.S. affiliate of a foreign entity, 
establishes a new legal entity in the United States and (i) the 
projected total cost to establish the new legal entity is greater than 
$3 million, and (ii) the foreign entity owns 10 percent or more of the 
new business enterprise's voting interest (directly or indirectly).
    (c) Form BE-13C--Report for an existing U.S. affiliate of a foreign 
parent when it acquires a U.S. business enterprise or segment that it 
then merges into its operations and the total

[[Page 30505]]

cost to acquire the business enterprise is greater than $3 million.
    (d) Form BE-13D--Report for an existing U.S. affiliate of a foreign 
parent when it expands its operations to include a new facility where 
business is conducted and the projected total cost of the expansion is 
greater than $3 million.
    (e) Form BE-13E--Report for a U.S. business enterprise that 
previously filed a BE-13B or BE-13D indicating that the established or 
expanded entity is still under construction.
    (f) Form BE-13 Claim for Exemption--Report for a U.S. business 
enterprise that (i) was contacted by BEA but does not meet the 
requirements for filing forms BE-13A, BE-13B, BE-13C, or BE-13D, or 
(ii) whether or not contacted by BEA, met all requirements for filing 
on Forms BE-13A, BE-13B, BE-13C, or BE-13D except the $3 million 
reporting threshold.
    In addition to the changes in the reporting criteria and form 
design, BEA proposes to add and delete some data items from the 
information collected on the previous BE-13 survey. The following items 
would be added to the survey:
    (1) Equity and debt components of the foreign parent funding;
    (2) A question asking if the new U.S. operation will have research 
and development activities;
    (3) A question asking if the new operation is under construction;
    (4) Employment projections;
    (5) Actual and projected construction expenditures by type and by 
year.
    BEA also proposes to eliminate several items from the new foreign 
investment survey. The items proposed to be eliminated are: Investment 
incentives, sales by industry (total sales and the overall industry 
code for the new operation will still be collected), equity ownership 
interest (voting interest will still be collected), address of the 
foreign parent (country will still be collected), and acres of U.S. 
land owned.

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 collection-of-information requirement 
subject to review and approval by OMB under the PRA. The requirement 
will be submitted to OMB for approval as a reinstatement, with change, 
of a previously approved collection under OMB control number 0608-0035.
    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA unless that collection displays a currently 
valid OMB control number.
    The BE-13 survey, as proposed, is expected to result in the filing 
of reports from approximately 1,350 U.S. affiliates each year. The 
respondent burden for this collection of information will vary from one 
company to another, but is estimated to average 1.6 hours per response, 
including time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Thus the total respondent 
burden for this survey is estimated at 2,160 hours, compared to 900 
hours for the previous BE-13 survey. The increase in burden hours is 
due to the increase in the number of respondents expected to file.
    Comments are requested concerning: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) The accuracy of the burden estimate; (c) 
Ways to enhance the quality, utility, and clarity of the information 
collected; and (d) Ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in the 
proposed rule should be sent to both BEA and OMB following the 
instructions given in the ADDRESSES section above.

Regulatory Flexibility Act

    The Chief Counsel for Regulation, Department of Commerce, has 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, under the provisions of the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 605(b), that this proposed rulemaking, if adopted, will 
not have a significant economic impact on a substantial number of small 
entities. The changes proposed in this rule are discussed in the 
preamble and are not repeated here.
    For small businesses that meet the reporting requirements of the 
survey, BEA has attempted to keep burden to a minimum by asking only 
those questions that are considered essential. The questions required 
are for data items that a company would ordinarily have obtained when 
planning an acquisition or expansion and therefore the answers are 
likely to be readily available from the existing records of the 
business.
    The amount of information required to be reported by each U.S. 
enterprise is determined by the type of transaction. U.S. enterprises 
acquired by a foreign investor are only required to file the BE-13 
survey once. Foreign-owned U.S. enterprises that are newly established 
or are undergoing expansion will be required to file an initial report 
and then will be asked to revise their projected costs every year until 
construction is complete.
    Because those small businesses that are impacted are subject to 
only a minimal reporting burden, the Chief Counsel for Regulation 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 15 CFR Part 801

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

    Dated: May 16, 2014.
Brent Moulton,
Acting Director, Bureau of Economic Analysis.
    For reasons set forth in the preamble, BEA proposes to amend 15 CFR 
part 801 as follows:

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

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

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

0
2. Revise Sec.  801.3 to read as follows:


Sec.  801.3  Reporting requirements.

    Except for surveys subject to rulemaking in Sec.  801.7, reporting 
requirements for all other surveys conducted by the Bureau of Economic 
Analysis shall be as follows:
    (a) Notice of specific reporting requirements, including who is 
required to report, the information to be reported, the manner of 
reporting, and the time

[[Page 30506]]

and place of filing reports, will be published by the Director of the 
Bureau of Economic Analysis in the Federal Register prior to the 
implementation of a survey;
    (b) In accordance with section 3104(b)(2) of title 22 of the United 
States Code, persons notified of these surveys and subject to the 
jurisdiction of the United States shall furnish, under oath, any report 
containing information which is determined to be necessary to carry out 
the surveys and studies provided for by the Act; and
    (c) Persons not notified in writing of their filing obligation by 
the Bureau of Economic Analysis are not required to complete the 
survey.
0
3. Revise Sec.  801.4 to read as follows:


Sec.  801.4  Recordkeeping requirements.

    In accordance with section 3104(b)(1) of title 22 of the United 
States Code, persons subject to the jurisdiction of the United States 
shall maintain any information which is essential for carrying out the 
surveys and studies provided for by the Act.
0
4. Amend Sec.  801.7 to read as follows:


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

    The BE-13, Survey of New Foreign Direct Investment in the United 
States is conducted to collect data on the acquisition or establishment 
of U.S. business enterprises by foreign investors and the expansion of 
existing U.S. affiliates of foreign companies to establish a new 
production facility. All legal authorities, provisions, definitions, 
and requirements contained in Sec. Sec.  801.1 through 801.2 and 
Sec. Sec.  801.4 through 801.6 are applicable to this survey. Specific 
additional rules and regulations for the BE-13 survey are given in 
paragraphs (a) through (d) of this section. More detailed instructions 
are given on the report forms and instructions.
    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-13, Survey of New Foreign 
Direct Investment in the United States, contained herein, whether or 
not they are contacted by BEA. Also, a person, or their agent, that is 
contacted by BEA about reporting in this survey, either by sending them 
a report form or by written inquiry, must respond in writing pursuant 
this section. This may be accomplished by filing the properly completed 
BE-13 report (BE-13A, BE-13B, BE-13C, BE-13D, BE-13E, or BE-13 Claim 
for Exemption) within 45 days of being contacted.
    (b) Who must report. A BE-13 report is required of any U.S. company 
in which:
    (1) A foreign direct investment in the United States relationship 
is created;
    (2) An existing U.S. affiliate of a foreign parent establishes a 
new U.S. legal entity, expands its U.S. operations, or acquires a U.S. 
business enterprise, or;
    (3) A U.S. business enterprise that previously filed a BE-13B or 
BE-13D indicating that the established or expanded entity is still 
under construction. Foreign direct investment is defined as the 
ownership or control by one foreign person (foreign parent) of 10 
percent or more of the voting securities of an incorporated U.S. 
business enterprise, or an equivalent interest of an unincorporated 
U.S. business enterprise, including a branch.
    (c) Forms to be filed. Depending on the type of investment 
transaction, U.S. affiliates would report their information, on one of 
six forms--BE-13A, BE-13B, BE-13C, BE-13D, BE-13E, or BE-13 Claim for 
Exemption.
    (1) Form BE-13A--Report for a U.S. business enterprise when a 
foreign entity acquires a voting interest (directly, or indirectly 
through an existing U.S. affiliate) in that enterprise, segment, or 
operating unit and:
    (i) The total cost of the acquisition is greater than $3 million;
    (ii) The U.S. business enterprise will operate as a separate legal 
entity, and;
    (iii) By this acquisition, at least 10 percent of the voting 
interest in the acquired entity is now held (directly or indirectly) by 
the foreign entity.
    (2) Form BE-13B--Report for a U.S. business enterprise when a 
foreign entity, or an existing U.S. affiliate of a foreign entity, 
establishes a new legal entity in the United States and:
    (i) The projected total cost to establish the new legal entity is 
greater than $3 million, and;
    (ii) The foreign entity owns 10 percent or more of the new business 
enterprise's voting interest (directly or indirectly).
    (3) Form BE-13C--Report for an existing U.S. affiliate of a foreign 
parent when it acquires a U.S. business enterprise or segment that it 
then merges into its operations and the total cost to acquire the 
business enterprise is greater than $3 million.
    (4) Form BE-13D--Report for an existing U.S. affiliate of a foreign 
parent when it expands its operations to include a new facility where 
business is conducted and the projected total cost of the expansion is 
greater than $3 million.
    (5) Form BE-13E--Report for a U.S. business enterprise that 
previously filed a BE-13B or BE-13D indicating that the established or 
expanded entity is still under construction. This form will collect 
updated cost information and will be collected annually until 
construction is complete.
    (6) Form BE-13 Claim for Not Filing--Report for a U.S. business 
enterprise that:
    (i) was contacted by BEA but does not meet the requirements for 
filing forms BE-13A, BE-13B, BE-13C, or BE-13D; or
    (ii) whether or not contacted by BEA, met all requirements for 
filing on Forms BE-13A, BE-13B, BE-13C, or BE-13D except the $3 million 
reporting threshold.
    (d) Due date. The BE-13 forms are due no later than 45 days after 
the acquisition is completed, the new legal entity is established, the 
expansion is begun, or the cost update is requested.

[FR Doc. 2014-12159 Filed 5-27-14; 8:45 am]
BILLING CODE 3510-06-P