As we previously reported, the U.S. Commerce Department’s Bureau of Economic Analysis (BEA) has reinstated the foreign direct investment survey. The so-called BE-13 Survey became effective in late November 2014 and was made retroactive to the beginning of 2014. Accordingly, any reportable transactions that closed between January 1 and November 26, 2014 must be reported to BEA by January 12, 2015. All subsequent foreign direct investments must be reported in the BE-13 Survey within 45 days of the transaction.
Unlike other foreign investment surveys administered by BEA, the BE-13 Survey is mandatory for all U.S. businesses subject to the reporting requirements, regardless of whether they have been specifically contacted by BEA.
The New BE-13 Survey and Reporting Requirements
The BE-13 Survey collects data on foreign investors’ acquisition or establishment of U.S. businesses, as well as the expansion of existing U.S. affiliates of foreign companies. The data will be used for statistical purposes and to gauge the impact of foreign direct investment on the U.S. economy. It will not be made public.
The filing requirements (explained in more detail in our previous alert) apply to the U.S. business and cover the following transactions:
- A foreign entity acquires (directly or indirectly through a U.S. affiliate) at least 10% of the voting interest in a U.S. business, where the total cost of the acquisition is greater than $3 million.
- A foreign entity establishes (directly or indirectly through a U.S. affiliate) a U.S. business in which it will hold at least 10% of the voting interest, where the total cost of establishing the new entity is greater than $3 million.
- An existing U.S. affiliate of a foreign parent acquires a U.S. business or expands to a new facility, where the total cost of the acquisition or expansion is greater than $3 million.
- If a transaction exceeds the 10% threshold, but not the $3 million floor, the U.S. business may have to file a BE-13 Claim for Exemption.
Responses to the BE-13 Survey will be filed on one of six forms, depending on the type of investment transaction. The survey forms require information on the transaction, affiliated U.S. entities, ownership by foreign entities, and certain financial and operating information.
BEA will generally grant extensions of the 45-day reporting period if requested before the deadline. In order to request an extension, companies may email email@example.com provide the name of the filing entity, the date of the covered investment, the nationality of the foreign entity, and the date by which the BE-13 Survey is expected to be filed. The survey may be filed electronically. The forms and additional information are available on the BEA website at http://www.bea.gov/surveys/respondent_be13.htm.
The failure to furnish information required by the BE-13 Survey could result in significant civil penalties of up to $25,000 and/or injunctive relief commanding the U.S. company to comply, as well as criminal penalties for willful violations up to $10,000 and/or imprisonment for up to one year. However, in light of the new requirements and the nature of BEA’s mission, the agency has stated informally that it does not intend to enforce violations of the reporting requirements, except in egregious cases of repeated failure to respond to BEA requests.
It is important to note that the BE-13 Survey must be completed by the U.S. company receiving foreign investment, not by the foreign investor. In particular, U.S. portfolio companies may need to file the BE-13 Survey if a foreign fund or asset manager acquired at least a 10% voting interest in the portfolio company in 2014. Likewise, a foreign-owned U.S. portfolio company may need to file if it acquired another U.S. business or expanded its own business in a transaction valued at greater than $3 million. Foreign funds that invest regularly in the United States should also be mindful of these requirements in order to ensure that their U.S. portfolio companies comply with BEA rules. While the survey’s definition of a “U.S. business enterprise” is broadly worded, companies should be primarily concerned with investments in U.S. operating companies or real estate, which are transactions that affect the U.S. economy.
The January 12, 2015 filing deadline is fast approaching for all reportable investments made between January 1 and November 26, 2014. The 45-day filing deadline will continue for all subsequent reportable investment.