Department of Commerce’s BE-13 Mandatory Survey of New Foreign Direct Investment in the United States

New Requirement to Report Foreign Direct investment in the U.S.

The Bureau of Economic Analysis of the U.S. Department of Commerce announced in September 2014 that it was reinstating a mandatory requirement that U.S. companies report new foreign investment through the filing of one of a family of survey forms designated as BE-13. BE-13 forms are filed electronically here.

Authority for the Survey

The authority for the survey is based on the International Investment and Trade in Services Survey Act, 90 Stat. 2059, 22 U.S.C. § 3101. The Act grants broad authority to the President “to collect information on international investment and United States foreign trade in services, whether directly or by affiliates, including related information necessary for assessing the impact of such investment and trade, to authorize the collection and use of information on direct investments owned or controlled directly or indirectly by foreign governments or persons, and to provide analyses of such information to the Congress, the executive agencies, and the general public.” 22 U.S.C. § 3101(b).

The Bureau previously required the filing of such surveys but discontinued the practice in 2009. Effective September 15, 2014, the Bureau reinstated the survey reporting requirements.

Purpose of the Survey

The purpose of the survey is to collect data from U.S. companies concerning acquisitions and mergers, new establishments, and expansions of existing businesses involving foreign direct investment. The data will be used for statistical analysis, research, and modeling purposes.

Reporting is Confidential

All information reported for the Survey of New Foreign Direct Investment in the United States is confidential. The information “cannot be presented in a manner that allows it to be individually identified” unless the reporting company provides prior written permission. See Current Reporting Requirements for BEA Surveys of Foreign Direct Investment in the United States (“BEA Survey Requirements”).

The Information is Used Only for Statistical Purposes

Because the information is confidential, the information “cannot be used for purposes of taxation, investigation, or regulation.” The information is used only for statistical and analytical purposes. (BEA Survey Requirements)

What Information Must be Submitted?

The survey requires general information such as the transaction’s monetary value, contact information for the filing company and certain of its affiliates, the date of the transaction, the names of the U.S. and foreign entities involved, and information regarding the chain of ownership of the U.S. business involved in the transaction.

Who Must File?

The person that is responsible for filing the form is not the foreign parent, but instead the ultimate U.S. parent of the U.S. business involved in the transaction – meaning the top U.S. parent entity in which the foreign parent holds at least a 10 percent interest. The ultimate U.S. parent must file on a fully consolidated domestic basis, which means that the ultimate U.S. parent must file on behalf of all of the “U.S. business enterprises proceeding down each ownership chain” in which the ultimate U.S. parent owns, directly or indirectly, 50 percent or more of the voting securities. (BEA Survey Requirements)

What Transactions Trigger the Filing Requirement?

All transactions occurring on or after January 1, 2014 must be reported to the Bureau for the survey. There are five different BE-13 filing forms. The determination as to which form is appropriate for any given transaction is based on the type of transaction involved. All of the filing forms may be found here.

  1. Form BE-13A: Transactions that result in a foreign entity owning 10% or more of the voting interest, direct or indirect through a U.S. affiliate, in a U.S. firm operating as a separate legal entity if the total cost of acquisition is greater than $3 million and the U.S. firm operates as a separate legal entity;
  2. Form BE-13B: Transactions that involve a foreign entity or existing U.S. affiliate of a foreign entity that establishes a new legal entity in the U.S., if the total cost is greater than $3 million and a foreign entity owns 10% or more of the voting interest, directly or indirectly through a U.S. affiliate;
  3. Form BE-13C: Transactions that result in an acquisition and subsequent merger by an existing U.S. affiliate of a foreign parent with a U.S. entity if the total cost is greater than $3 million;
  4. Form BE-13D: Transactions that involve the expansion of operations of an existing U.S. affiliate of a foreign parent firm to include a new facility if the total cost is greater than $3 million; and
  5. Form BE-13E: Transactions that have been previously reported under Forms BE-13B or 13-D but remain under construction. (This form is not available yet, but the Bureau will be publishing it later in 2015.)

There are two additional situations that require a U.S. entity to file a form, even if the transaction in question does not meet the requirements described above. First, a U.S. company must file a BE-13 Claim for Exemption form if the company is contacted by the Bureau even though the transaction in question does not require the filing of the BE-13 forms described above. Second, a U.S. entity must file a BE-13 Claim for Exemption form if the underlying transaction meets all of the reporting requirements except the $3 million reporting threshold. The BE-13 Claim for Exemption form may also be found here.

Additional Surveys May Be Required

In addition to the initial filings required for new transactions, the Bureau may require separate quarterly, annual, or benchmark surveys of some entities. If the Bureau decides to require any such surveys for any entity, the Bureau will notify the entity’s U.S. affiliate of the requirement.

Deadlines for Filing

Generally, the forms described above must be filed within “45 days after the acquisition is completed, the new legal entity is established, or the expansion is begun.”

For transactions completed on or before November 26, 2014, the filing is due by January 12, 2015.

Penalties

Violations of the requirement to report can result in civil or criminal liability, or both. Entities that fail to report may face civil fines between $2,500 and $32,500 and may be enjoined to compel reporting. In addition, failure to report may result in criminal liability, meaning a fine of up to $10,000 or a sentence of up to one year in prison, or both, if the failure is willful.

Requests for Extensions

The Bureau has not finalized any formal process for requesting extensions of the filing deadline. The Bureau has requested that, until any such process has been adopted, reasonable requests for extensions be emailed to the Bureau here. The request should include the name of the U.S. entity, the date of the transaction, the country of formation of the foreign parent (meaning the first entity in the chain of ownership outside the United States that has a 10 percent or more voting interest in the ultimate U.S. parent), and basic details of the reportable transaction(s).

 

Leave a Reply

Copyright © 2019, K&L Gates LLP. All Rights Reserved.