Mandatory US Government Survey Regarding Foreign Direct Investment in the United States

Alerts / January 20, 2023

The U.S. government’s most comprehensive survey regarding foreign direct investment in the United States is being conducted in 2023. The survey is the BE-12, a five (5) year benchmark survey conducted by the U.S. Department of Commerce’s Bureau of Economic Analysis (BEA). While the BE-12 survey is conducted every five years, the reporting period only covers fiscal years ending in 2022 (not all five preceding years).

Unlike the Committee on Foreign Investment in the United States (CFIUS), which collects information regarding the impact of foreign investment on U.S. national security, the BE-12, like other BEA surveys, is focused on financial and operating data. The survey responses are to be used by BEA for statistical and analytical purposes only and cannot be shared with other U.S. government agencies. As in the case of filings with CFIUS, responses to BEA surveys are not subject to public release under the Freedom of Information Act (FOIA).

As a general rule, in accordance with 15 C.F.R. § 801.10, each U.S. business enterprise (including real estate held for non-personal use) that is owned or controlled 10 percent or more, directly or indirectly, by a foreign person at the end of the U.S. business enterprise's fiscal year ending in calendar year 2022 must complete the survey if they meet certain financial criteria. Survey responses are due to BEA by May 31, 2023, or by June 30, 2023, if submitted electronically. As set forth in 15 C.F.R. § 801.10(b), certain private funds are exempt from submitting a BE-12 survey. Also, businesses that would normally file the BE-15 annual foreign direct investment survey should file the BE-12 instead.

All U.S. businesses subject to the reporting requirements must file, irrespective of whether they are contacted by BEA. Failure to file the survey could subject a U.S. business to civil penalties between $5,580 and $55,808, and BEA is authorized to seek injunctive relief compelling a response. Willful violations can carry criminal penalties of up to $10,000 and/or, for individuals, imprisonment of up to one year. The criminal penalties applicable to individuals apply to officers, directors, employees, or agents of corporations who knowingly participate in such violations.

While the BE-12 survey forms are not currently available, they are expected to be available on the BEA website soon, and U.S. businesses should plan well in advance to submit the form prior to the applicable deadline. The BE-12 survey form has several versions, and a fact-specific analysis will be required to determine which form is appropriate for any given U.S. business and whether any filing exemption applies. We are available to assist with interpreting the filing requirements or completing a filing, if required. More information on the BE-12 and other BEA surveys is available on BEA’s website.

Please do not hesitate to reach out to your BakerHostetler relationship partner or one of BakerHostetler’s foreign investment regulatory attorneys (Barbara Linney, Melissa Mannino, Lana Muranovic, Scott Jansen and Orga Cadet) with questions.

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