[Federal Register Volume 85, Number 145 (Tuesday, July 28, 2020)]
[Rules and Regulations]
[Pages 45311-45313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15336]


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DEPARTMENT OF THE TREASURY

Office of Investment Security

31 CFR Parts 800 and 802

RIN 1505-AC63, 1505-AC64, 1505-AC65


Definition of ``Principal Place of Business''; 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: Final rule.

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SUMMARY: The final rule makes a clarifying revision to the definition 
of ``principal place of business'' and adopts the interim rule 
establishing a fee for parties filing a formal written notice of a 
transaction for review by the Committee on Foreign Investment in the 
United States.

DATES: The final rule is effective on August 27, 2020.

FOR FURTHER INFORMATION CONTACT: For questions about this 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

A. Definition of ``Principal Place of Business''

    On January 17, 2020, the Department of the Treasury (Treasury 
Department) published two interim rules, each effective February 13, 
2020, that provided a definition for the term ``principal place of 
business'' as applicable to transactions subject to review by the 
Committee on Foreign Investment in the United States (CFIUS or the 
Committee). 85 FR 3112 (January 17, 2020); 85 FR 3158 (January 17, 
2020). The preambles to the interim rules provide background on this 
definition. While the definition took effect on February 13, 2020, the 
public was provided an opportunity to comment. The Treasury Department 
received several comments, which are discussed further below.

B. Filing Fees for Formal Written Notices

    On March 9, 2020, the Treasury Department published a notice of 
proposed rulemaking amending 31 CFR part 800 and 31 CFR part 802 to 
establish a fee for ``covered transactions'' and ``covered real estate 
transactions,'' respectively, that are filed with CFIUS as formal 
written notices. 85 FR 13586 (March 9, 2020). The public was provided 
an opportunity to comment on the proposed rule and several comments 
were received. Following consideration of the public comments, on April 
29, 2020, the Treasury Department published an interim rule 
establishing filing fees, effective May 1, 2020. 85 FR 23736 (April 29, 
2020). As explained in the preamble to the interim rule, subpart K on 
filing fees was added to the

[[Page 45312]]

regulations at 31 CFR part 800 and 31 CFR part 802, and a limited 
number of revisions were made to other related sections of those 
regulations. Additionally, the preamble to the interim rule included a 
discussion of the public comments received on the proposed fee rule. 
While the Treasury Department began collecting fees on May 1, 2020, it 
determined that the public and the Committee would benefit from an 
additional comment period, which ended on June 1, 2020. Comments 
received during the additional comment period are discussed below.
    The preambles to the proposed rule and the interim rule provide 
additional information on the Committee's statutory authority and 
requirements with respect to filing fees, and various factors that were 
considered in establishing the filing fee regulations.

II. Summary of Comments and Change From the Interim Rules

    During the public comment periods for each of the interim rules 
discussed above, the Treasury Department received written submissions 
reflecting a range of views. All comments received by the end of each 
comment period are available on the public rulemaking dockets at 
https://www.regulations.gov. The section-by-section analysis below 
discusses the comments and describes a clarifying revision.

A. Definition of ``Principal Place of Business''--Sections 800.239 and 
802.232

    Several written submissions were received on the interim rules 
defining the term ``principal place of business.'' In general, 
commenters expressed support and offered suggestions to clarify or 
address specific types of investors or scenarios. As described below, 
in consideration of the comments, one clarifying revision is made in 
the final rule.
    One commenter expressed strong support for the definition in the 
interim rules, noting that it provides clarity and aligns with business 
realities. Another commenter noted that paragraph (a) of the definition 
was reasonable, appropriate, and consistent with CFIUS's historic 
application of the term, but suggested that the phrase ``activities and 
investments'' with respect to investment funds be clarified. In 
response to this comment, the final rule removes ``and investments.'' 
The Treasury Department intends that, with respect to investment funds, 
the word ``activities'' is inclusive of ``investments;'' thus, 
directing and managing investments made by an investment fund would be 
captured by the word ``activities.''
    Commenters also made suggestions with respect to paragraph (b) of 
the definition, which addresses the situation where an entity has made 
representations to a government that may be inconsistent with its 
assertion for CFIUS purposes that its principal place of business is in 
the United States under the criteria set forth in paragraph (a) of the 
definition. One commenter suggested removing the phrase ``or 
equivalent.'' Another commenter suggested that the criteria in 
paragraph (b) of the definition be narrowed to more closely match the 
language in paragraph (a).
    No changes were made to paragraph (b) in response to these 
comments. Paragraph (b) includes a non-exhaustive list of 
representations an entity might make to a government, each of which 
approximate the criteria set forth in paragraph (a). One commenter 
suggested that an entity maintaining an offshore ``registered agent'' 
or ``place of business'' would preclude it from having a principal 
place of business in the United States under the definition. The 
Treasury Department disagrees because the focus of paragraph (b) is a 
representation of an entity's ``principal'' or ``headquarters'' 
location, or equivalent terms that capture the same concept. The 
Treasury Department also disagrees with suggestions made by commenters 
that additional examples of the application of the definition to 
specific scenarios--such as addressing investment funds with more 
particularity--would be beneficial, because the particular facts and 
circumstances would need to be considered.

B. Filing Fees for Formal Written Notices--Subpart K

    Two responsive written submissions were received on the interim 
rule establishing filing fees. One commenter broadly supported the 
interim rule and the second commenter suggested changes, which are 
discussed below.

Sections 800.1101 and 802.1101--Amount of Fee

    Consistent with the proposed rule and the interim rule, Sec. Sec.  
800.1101 and 802.1101 set forth the fee amount based on the value of 
the transaction.
    One commenter proposed two alternatives to Sec. Sec.  800.1101 and 
802.1101. One suggestion was that the Treasury Department, during an 
initial phase of filing fee implementation, impose a flat $10,000 fee 
for all transactions above a certain threshold. The final rule does not 
make any change in response to this comment. The Foreign Investment 
Risk Review Modernization Act of 2018 (FIRRMA) directs that the fee 
shall be based on the ``value of the transaction,'' and the approach in 
the final rule is consistent with the statute. Additionally, FIRRMA 
provides that the amount of the fee should take into account the 
expenses of the Committee associated with conducting its activities. 
The personnel and resource costs to the Committee of reviewing a notice 
are not insignificant and may often exceed the suggested flat fee. 
Finally, the fee structure set forth in the final rule provides for a 
low proportional cost (equal to or less than 0.15% of the transaction 
value) for all transactions.
    The commenter also suggested, in the alternative, that additional 
fee bands be incorporated into the rule and the fee amounts be lowered. 
The commenter asserted that the fee structure in the interim rule may 
provide a disincentive to voluntary filings or encourage parties to 
restructure transactions to minimize fees. The final rule does not make 
any changes in response to this comment. In the event that a 
transaction is restructured to be effectuated in multiple phases, 
Sec. Sec.  800.1103(e)(1) and 802.1103(h)(1) address calculation of a 
fee in such a circumstance.
    The Treasury Department considered different approaches to the fee 
structure--including additional transaction value ranges and lower fee 
amounts--and decided that the structure in the final rule is the most 
appropriate for reasons including proportionality and administrability. 
The commenter's proposed fee structure would have the effect of raising 
fees on lower value transactions and reducing fees on higher value 
transactions, as compared to the fee schedule in the interim rule. 
Additionally, in considering the proposed fee structure, the Treasury 
Department evaluated that additional fee bands could increase 
complexity for parties and the Committee in terms of the analysis 
required to determine which fee amount is relevant to a particular 
transaction--especially where the precise transaction value may not be 
known at the time of the filing. The filing fee structure in the 
interim rule allows the Committee to appropriately generate funding--
consistent with FIRRMA--in order to support the work of the Committee, 
but at the same time, keep the cost as a proportion of transaction 
value low. In terms of incentives to voluntarily file a notice with 
CFIUS where a fee is required, the Treasury Department notes that the 
benefit of filing a notice and paying the fee is the ``safe harbor'' 
that

[[Page 45313]]

may be obtained upon the conclusion of CFIUS review where there are no 
unresolved national security concerns. This is of considerable value to 
transaction parties, particularly those who have determined that filing 
a notice is appropriate given the circumstances of the transaction and 
the potential interest the Committee may have in the transaction if not 
notified. Finally, transaction parties can take advantage of the 
declaration process, which does not require a fee.
    No additional comments were received. Therefore, the final rule 
adopts the interim rule as published.

III. Rulemaking Requirements

Executive Order 12866

    This rule is not subject to the general requirements of Executive 
Order 12866, which covers review of regulations by the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB), because it relates to a foreign affairs function of 
the United States, pursuant to section 3(d)(2) of that order. In 
addition, this rule is 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 rule was submitted 
to OMB for review along with the proposed rule, in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control 
number 1505-0121.
    The notice requirements in 31 CFR part 800 and 31 CFR part 802 were 
approved under the Paperwork Reduction Act with a per respondent burden 
of 130 hours and 116 burden hours, respectively. In the proposed rule 
establishing filing fees, the Treasury Department invited public 
comments with respect to the amended reporting requirements under 
Sec. Sec.  800.502(c)(1)(viii) and 802.502(b)(1)(ix). No comments were 
received. An agency may not conduct or sponsor, and a person 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 (APA), or any 
other law. As set forth in the preamble to the proposed rule 
establishing filing fees at Section III, because rules issued pursuant 
to the Defense Production Act, such as this rule, are not subject to 
the APA or another law requiring the publication of a general notice of 
proposed rulemaking, the RFA does not apply. Nevertheless, for the 
reasons detailed in the RFA section of the proposed and interim rules, 
the Secretary of the Treasury certified that the rule, if implemented, 
``will not have a significant economic impact on a substantial number 
of small entities,'' 5 U.S.C. 605(b). This final rule makes limited 
changes to interim rules already in effect that will not have a 
significant economic impact on a substantial number of small entities. 
The Treasury Department also invited public comment on how the proposed 
rule would affect small entities.

Congressional Review Act

    This rule has been submitted to OIRA which has determined that the 
rule is not a ``major'' rule under the Congressional Review Act.

List of Subjects

31 CFR Part 800

    Fees, Foreign investments in the United States, Investment 
companies, Investments, National defense.

31 CFR Part 802

    Fees, Federal buildings and facilities, Foreign investments in the 
United States, Government property, Investigations, Investment 
companies, Investments, Land sales, National defense, Public lands, 
Real property acquisition, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 31 CFR parts 800 and 802 
regarding the establishment of filing fees, which was published in the 
Federal Register at 85 FR 23736 on April 29, 2020, is adopted as final 
without change. The interim rules amending 31 CFR parts 800 and 802 
that were published in the Federal Register at 85 FR 3112 and 85 FR 
3158 on January 17, 2020 are adopted as final with the following 
changes:

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 as follows:

    Authority:  50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Subpart B--Definitions


Sec.  800.239   [Amended]

0
2. Amend Sec.  800.239 in paragraph (a) by removing ``and investments'' 
after ``where the fund's activities''.

PART 802--REGULATIONS PERTAINING TO CERTAIN TRANSACTIONS BY FOREIGN 
PERSONS INVOLVING REAL ESTATE IN THE UNITED STATES

0
3. The authority citation for part 802 continues to read as follows:

    Authority:  50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Subpart B--Definitions


Sec.  802.232   [Amended]

0
4. Amend Sec.  802.232 in paragraph (a) by removing ``and investments'' 
after ``where the fund's activities''.

    Dated: July 10, 2020.
Thomas Feddo,
Assistant Secretary for Investment Security.
[FR Doc. 2020-15336 Filed 7-27-20; 8:45 am]
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