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Proposed Rule

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

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Start Preamble

AGENCY:

Bureau of Economic Analysis, Commerce.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This proposed rule would amend regulations of the Department of Commerce's Bureau of Economic Analysis (BEA) to set forth the reporting requirements for the 2012 BE-12, Start Printed Page 58421Benchmark Survey of Foreign Direct Investment in the United States. Benchmark surveys are conducted every five years; the prior survey covered 2007. The benchmark survey covers the universe of foreign direct investment in the United States, and is BEA's most comprehensive survey of such investment in terms of subject matter. For the 2012 benchmark survey, BEA proposes changes in reporting thresholds and data items collected, as well as changes in form design.

DATES:

Comments on this proposed rule will receive consideration if submitted in writing on or before 5 p.m. November 21, 2011.

ADDRESSES:

You may submit comments, identified by RIN 0691-AA80, 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-2011-0002.”
  • E-mail: David.Galler@bea.gov.
  • 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), O.I.R.A., Paperwork Reduction Project 0608-0042, Attention PRA Desk Officer for BEA, via e-mail at pbugg@omb.eop.gov, or by FAX at 202-395-7245.

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, WordPerfect, or Adobe portable document file (pdf) formats only.

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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.

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SUPPLEMENTARY INFORMATION:

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 BE-12, Benchmark Survey of Foreign Direct Investment in the United States, is a mandatory survey and is conducted once every five years by BEA, under the International Investment and Trade in Services Survey Act, 22 U.S.C. 3101-3108 (the Act).

The benchmark survey covers the universe of foreign direct investment in the United States in terms of value, and is BEA's most comprehensive survey 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 ten 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 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.

BEA will make the survey available via eFile, BEA's electronic filing system, in March 2012, for the convenience of respondents who may wish to file as soon as their 2012 fiscal year ends. BEA will send printed survey forms to potential respondents in March 2013; responses will be due by May 31.

This proposed rule would amend 15 CFR 806.17 to set forth the reporting requirements for the BE-12, Benchmark Survey of 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 revise the regulations and the survey forms for the BE-12 benchmark survey. These amendments include changes in reporting thresholds and data items collected, as well as changes in form design. Several of these amendments are part of a larger program to align the data collection program for multinational companies with available resources.

If this proposed rule is made final, U.S. affiliates would report their information, regardless of industry, on one of four forms—BE-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing. Data on U.S. affiliates that are banks, bank holding companies, or financial holding companies would be collected on the same survey forms as data on other U.S. affiliates, and the 2007 benchmark survey form BE-12 Bank would be discontinued.

The amount of information required to be reported by each U.S. affiliate is determined by the size of the affiliate's assets, sales or gross operating revenue, and net income. To minimize the reporting burden on smaller U.S. companies that are foreign owned, BEA proposes to increase the reporting thresholds for each of the forms. The proposed reporting requirements for the four forms are—

(a) Form BE-12(A)—Report for majority-owned U.S. affiliates with total assets, sales or gross operating revenues, or net income greater than $300 million, positive or negative. (For 2007, this threshold was $175 million.) Form BE-12A would replace 2007 benchmark survey form BE-12 (Long Form) for reporting the largest majority-owned U.S. affiliates.

(b) Form BE-12(B)—Report for majority-owned U.S affiliates with total assets, sales or gross operating revenues, Start Printed Page 58422or net income greater than $60 million, positive or negative, but not greater than $300 million, positive or negative, and minority-owned U.S. affiliates with total assets, sales or gross operating revenues, or net income greater than $60 million, positive or negative. (For 2007, this threshold was $40 million.) Form BE-12B would replace 2007 benchmark survey form BE-12 (Short Form) for reporting smaller majority-owned U.S. affiliates and minority-owned U.S. affiliates that meet the reporting threshold stated above.

(c) Form BE-12(C)—Report for U.S. affiliates with total assets, sales or gross operating revenues, or net income less than or equal to $60 million, positive or negative. Form BE-12C would replace 2007 benchmark survey form BE-12 Mini for reporting the smallest U.S. affiliates.

(d) Form BE-12 Claim for Not Filing—Report to be filed by U.S. persons that are not subject to the reporting requirements for the BE-12 benchmark survey, but have been contacted by BEA concerning their reporting status. The name of this form remains unchanged from the 2007 benchmark survey.

In addition to the changes in the reporting criteria, BEA proposes to add and delete some items on the benchmark survey forms. The following items would be added to the benchmark survey:

(1) Questions will be added regarding the use of fair value accounting on the balance sheet. Companies that indicate that they did use fair value accounting will be asked to provide the amount of net property, plant, and equipment, of total assets, and of total liabilities that was recorded at fair value.

(2) Questions will be added to collect information on assets, liabilities, and interest receipts and payments that are related to banking activities.

(3) Several check-box questions will be added asking whether U.S. affiliates purchased contract manufacturing services from others or performed contract manufacturing services for others. They will also be asked whether they owned the materials used in contract manufacturing and if the company that performed or purchased the service was located in the United States or abroad.

(4) A question will be added asking if the U.S. affiliate has equity in its foreign parent(s) (reverse investment). An item will be added to collect voting percent, equity percent, and the dollar amount of the investment.

(5) Several check-box questions will be added to ensure that certain types of finance companies do not report intercompany debt to BEA that is already reported on Treasury International Capital surveys.

BEA proposes to eliminate several items from the benchmark survey. Many of these items were eliminated from the BE-15 Annual Survey of Foreign Direct Investment in the United States beginning with the 2008 survey. Others are proposed for elimination because they are no longer used, because the information is collected on other surveys conducted by BEA, or because the quality of the data collected has been poor. The items proposed to be eliminated are: selected balance sheet items; the breakdown of sales of services to foreign persons into sales of services to the foreign parent group, to foreign affiliates owned by the affiliate, and to other foreign persons; the breakdown of employment and employee compensation by occupational classification; the breakdown of total employee compensation into wages and salaries and employee benefit plans; data on the composition of external finances; manufacturing employment by state; gross property, plant, and equipment by state; commercial property by state; the location of the primary U.S. headquarters of the U.S. affiliate; number of employees covered by collective bargaining agreements; acres of U.S. land owned; basis (shipped or charged) for trade data (check-box questions); exports/imports shipped to/by foreign affiliates owned by U.S. affiliate by country of origin/destination (as in the benchmark surveys for 2002 and earlier years, these columns will be combined with the columns “shipped to/by all other foreign persons”); and withholding taxes on intercompany interest payments and interest receipts.

In addition, BEA plans to rename (as described above) and redesign the survey forms. The new design will incorporate improvements made to other BEA surveys. Survey instructions and data item descriptions will be changed to improve clarity, make the benchmark survey forms more consistent with those of other BEA surveys, and provide updated information on accounting standards.

Survey Background

The BEA conducts the BE-12 survey under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” Section 3103(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.” With respect to foreign direct investment in the United States, section 3103(b) also instructs the BEA to:

(1) Identify the location, nature, and magnitude of, and changes in total investment by any foreign parent in each of its U.S. affiliates and the financial transactions between any foreign parent and each of its U.S. affiliates;

(2) Obtain (A) information on the balance sheet U.S. affiliates of foreign parents 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 U.S. affiliates, and (C) related information regarding trade, including trade in both goods and services, between the foreign parent and each of its U.S. affiliates and between each U.S. affiliate and any other person;

(3) Collect employment data showing both the number of United States employees of each U.S. affiliate and the levels of compensation by industry;

(4) Obtain information on tax payments by U.S. affiliates; and

(5) Determine, by industry, the total dollar amount of research and development expenditures by U.S. affiliate, payments or other compensation for the transfer of technology between foreign parents and their U.S. affiliates, and payments or other compensation received by U.S. affiliates from the transfer of technology to other persons.

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 0608-0042.

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. Start Printed Page 58423

The BE-12 survey, as proposed, is expected to result in the filing of reports from approximately 19,950 U.S. affiliates. The respondent burden for this collection of information will vary from one company to another, but is estimated to average 9.7 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 194,150 hours, compared to 209,650 hours for the previous (2007) benchmark survey. The decrease in burden hours is due to a reduction in the number of data items on the form which reduces the average burden per form, and increased reporting thresholds which allow more respondents to file on shorter forms.

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.

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 businesses that are foreign owned, the reporting burden is estimated to be small.

The amount of information required to be reported by each U.S. affiliate is determined by the size of the affiliate's assets, sales, or net income or loss. To minimize the reporting burden on smaller U.S. companies that are foreign owned and are required to report, BEA proposes to increase the threshold for reporting on Form BE-12A (the longest form) from $175 million to $300 million and on Form BE-12B from $40 million to $60 million. All affiliates below $60 million will file on Form BE-12C (the shortest form). The smallest affiliates only file a few items on Form BE-12C; BEA proposes to raise the threshold for filing an abbreviated BE-12C from $15 million to $20 million.

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.

Start List of Subjects

List of Subjects in 15 CFR Part 806

End List of Subjects Start Signature

Dated: August 9, 2011.

J. Steven Landefeld,

Director, Bureau of Economic Analysis.

End Signature

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

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PART 806—DIRECT INVESTMENT SURVEYS

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

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Authority: 5 U.S.C. 301; 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 (3 CFR, 1985 Comp., p. 348).

End Authority

2. Revise § 806.17 to read as follows:

Rules and regulations for BE-12, Benchmark Survey of Foreign Direct Investment in the United States—2012.

A BE-12, Benchmark Survey of Foreign Direct Investment in the United States, will be conducted covering 2012. All legal authorities, provisions, definitions, and requirements contained in § 806.1 through § 806.13 and § 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, Benchmark Survey of Foreign Direct Investment in the United States—2012, 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 to § 806.4. This may be accomplished by:

(1) 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;

(2) Completing and returning the “BE-12 Claim for Not Filing” by the due date of the survey; or

(3) Filing the properly completed BE-12 report—Form BE-12A, Form BE-12B, or Form BE-12C—by May 31, 2013.

(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 2012. 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 2012 reporting year.

(c) Forms to be filed. (1) Form BE-12A 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 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 $300 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2012:

(i) Total assets (do not net out liabilities);

(ii) Sales or gross operating revenues, excluding sales taxes; or

(iii) Net income after provision for U.S. income taxes.

(2) Form BE-12B must be completed by:

(i) A majority-owned U.S. affiliate if, 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) of this section (not just the foreign parent's Start Printed Page 58424share), was greater than $60 million (positive or negative) but none of these items was greater than $300 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2012.

(ii) A minority-owned U.S. affiliate if, 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) of this section (not just the foreign parent's share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2012. (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-12C must be completed by a U.S. affiliate if, 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) of this section for a U.S. affiliate (not just the foreign parent's share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2012.

(4) 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-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing is due to be filed with BEA not later than May 31, 2013.

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[FR Doc. 2011-24267 Filed 9-20-11; 8:45 am]

BILLING CODE 3510-06-P