Is BEA Form BE-13 on your Post-Closing Checklist?

Even US companies sometimes have trouble keeping track of all of the reports and other requirements imposed by the US government.  For non-US companies, the challenge to identify all relevant requirements is no doubt even greater. 

By Susan Kovarovics, 7 June 2016.

Although you may be aware of the “voluntary” filing requirements for certain foreign investment in the United States associated with the Committee on Foreign Investment in the United States, there are other mandatory filing requirements tied to both foreign direct investment in the United States and US direct investment abroad that may touch your business activities.

The US Bureau of Economic Analysis (BEA) gathers a variety of data in order to generate economic statistics for the US government.  Some of this data is gathered through a variety of surveys issued by BEA and for which the reporting requirements vary.  Some are due quarterly and some annually, but only if BEA contacts you; a couple are due every 5 years, and one is due within 45 days of the completion of new foreign direct investment in the United States.  It is this last one, Form BE-13, that may need to be added to your post-closing checklist if you are investing in the United States as part of a deal.

And to keep track of the various BEA forms and their submission requirements if you have any investments in the United States, or are owned by a US party (and therefore might receive requests for information when they complete the forms), here is a summary of the various filing requirements with the BEA:

US Direct Investment Abroad

• BE-10  Benchmark Survey of US Direct Investment Abroad:  Mandatory every 5 years for all parties that meet the criteria (next due in 2020 for FY2019).
• BE-11 Annual Survey of US Direct Investment Abroad:  Mandatory if contacted by BEA.
• BE-577 Quarterly Survey of US Direct Investment Abroad:  Mandatory if contacted by BEA.

Foreign Direct Investment in the US

• BE-12 Benchmark Survey of Foreign Direct Investment in the United States:  Mandatory every 5 years for all parties that meet the criteria (next due in 2018 for FY2017).
• BE-13 Survey of New Foreign Direct Investment in the United States:  Mandatory by US business enterprise within 45 days of the following occurring: (1) a foreign direct investment in the United States relationship is created or (2) an existing US affiliate of a foreign parent establishes a new US legal entity, expands its US operations, or acquires a US business enterprise. Foreign direct investment is defined as the ownership or control, directly or indirectly, by one foreign person of 10 percent or more of the voting securities of an incorporated US business enterprise, or an equivalent interest of an unincorporated US business enterprise, including a branch.
• BE-15 Annual Survey of Foreign Direct Investment in the United States:  Mandatory if contacted by BEA.
• BE-605 Quarterly Survey of Foreign Direct Investment in the United States:  Mandatory if contacted by BEA.

Just because you do not have to file one of these reports every year, be sure to pay attention when a filing is due.  Because when the obligation attaches, it is mandatory and monetary penalties can be imposed for failure to file.

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Susan Kovarovics

Partner at Bryan Cave Leighton Paisner LLP

Susan Kovarovics is a partner in the International Trade group of Bryan Cave Leighton Paisner LLP. She counsels foreign and domestic parties regarding international business regulatory matters. Specifically, her practice focuses on providing practical legal advice that can be readily applied by in-house legal and business personnel in matters involving the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), sanctions administered by the Office of Foreign Assets Control (OFAC), U.S. anti-boycott laws, and the Foreign Corrupt Practices Act (FCPA).

Ms. Kovarovics designs and implements compliance programs and provides training sessions on export and defense trade controls, trade sanctions, customs, anti-corruption and anti-boycott matters. She also designs and leads internal audits and reviews to assess compliance in these areas.

Ms. Kovarovics assists clients with all aspects of the export license and agreement approvals processes at the Department of Commerce, State and Treasury. In addition, she guides clients through commodity jurisdictions and commodity classification requests for exports and ruling requests related to import matters. She also conducts due diligence reviews related to export controls, trade sanctions and anti-corruption matters.

Routinely, Ms. Kovarovics conducts internal investigations and advises clients on future actions based on results of investigations, including appropriate disciplinary and other corrective measures in response to violations of corporate policies and trade regulations. Moreover, she counsels clients on voluntary disclosure matters and represents clients in enforcement proceedings before federal authorities.

Susan’s Bar Admissions include the states of Virginia and the District of Columbia in the U.S.

Education: Susan earned her law degree from Georgetown University, cum laude (1996) and her undergraduate degree from Drew University, summa cum laude (1993).

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