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(d) If, during any year commencing States a full and accurate record of each with the year 1970, the incremental transaction engaged in by it which is earnings allowable authorized to a direct subject to the provisions of this part, reinvestor exceeds the aggregate of addi- gardless of whether such transaction is tional positive direct investment made in effected pursuant to authorization or all scheduled areas pursuant to para- otherwise, and of every other transaction graph (b) or (c) of this section, the between such person and an affiliated direct investor is authorized to make ad- foreign national. Such records (includditional positive direct investment, dur- ing, but not limited to, source materials, ing succeeding years, in the same manner journals or other books of original entry, as provided in paragraphs (b) and (c) ledgers, financial statements, work paof this section, in an aggregate amount pers, regardless of by whom prepared, not exceeding such excess.
and minute books) shall be retained for 134 F.R. 9069, June 7, 1969, as amended at at least 3 years after the date of the 35 F.R. 7226, May 7, 1970)
filing of any report relating to or contain
ing information concerning such trans$ 1000.507 Alternative minimum and
action, whether or not the transaction is Schedule A supplemental allowable.
individually identified. Records relating (a) If for any year commencing with to transactions with respect to which the year 1971 a direct investor elects
there is no reporting requirement shall be under $ 1000.502(a)(4), positive direct retained for at least 3 years after the investment for such year is authorized filing of the annual report relating to the as follows:
year in which such transactions occurred. (1) In Schedules B and C in an aggre- (35 F.R. 7226, May 7, 1970] gate amount not exceeding $2,000,000; and
§ 1000.602 Reports. (2) In Schedule A in an amount not
(a) Every person is required to furexceeding $4,000,000.
nish under oath, in the form of reports (b) If during any year commencing or otherwise, from time to time and at with the year 1970 the aggregate amount
any time as may be required by the of positive direct investment authorized Secretary, complete information relative to a direct investor in Schedules B and
to any transaction with respect to which C under paragraph (a)(1) of this sec
records are required to be kept under this tion exceeds the aggregate amount of
part or information otherwise reasondirect investment (whether positive or ably related to direct investment or the negative) made by the direct investor
purposes of Executive Order 11387 or of during such year in Schedules B and C,
this part. The Secretary may require the direct investor is authorized to make
that such reports include the production additional positive direct investment in
of any books of account, contracts, letSchedule A during the same year in an ters, or other papers, relevant to direct aggregate amount of not more than the
investment or transactions related thereamount of such excess.
to in the custody or control of per ns (c) If a direct investor elects to make
required to make such reports. Complete positive direct investment during any information with respect to transactions year commencing with the year 1970 as
related to direct investment may be reauthorized under this section, no positive quired either before or after such transdirect investment shall be authorized in actions are completed. The Secretary such year under $ 1000.504 and any posi- may, through any person or agency, intive direct investment which would other- vestigate any such transaction or any wise have been authorized in such year
violation of the provisions of this part, under $ 1000.504 (d), e), or (f) or
regardless of whether any report has $ 1000.1302 shall, notwithstanding those
been required or filed in connection
therewith. provisions, not be authorized in such year or succeeding years.
(b) In addition to such other reports
as may be required under paragraph (a) [35 F.R. 7226, May 7, 1970, as amended at 36 F.R. 976, Jan. 21, 1971]
of this section, the following reports are
required to be filed by direct investors Subpart F-Records and Reports with the Office of Foreign Direct Invest§ 1000.601 Records.
ments, Department of Commerce, Wash
ington, D.C. 20230: Every person subject to the provisions (1) Form FDI-101, Base Period Reof this part shall keep in the United port. Each direct investor must file this
report on or before the end of the month following the close of the calendar quarter during which it becomes a direct investor, unless the direct investor is exempt from filing as provided in the instructions to this report. If an exemption from filing ceases to apply to a direct investor, such direct investor must file this report on or before the end of the month following the close of the calendar quarter during which the exemption ceases to apply.
(2) Form FDI-102, Cumulative Quarterly Report. Each direct investor must file this report (on Form FDI-102/102F) within 45 days after the close of each quarter of the calendar year, unless such filing is waived by OFDI or the direct investor is exempt from filing as provided in the instructions to this report.
(3) Form FDI-102F, Annual Report. Each direct investor must file this report (on Form FDI-102/102F) for each year on or before April 30 of the succeeding year, unless the direct investor is exempt from filing a Base Period Report on Form FDI-101 as provided in the instructions to such report.
(4) Form FDI-102F/S, Annual Report: Short Form. If a direct investor elects pursuant to $ 1000.502(a) (1) or (4) to be governed by the provisions of $ 1000.503 or $ 1000.507 and satisfies other criteria specified in the instructions to this report, it may file its Annual Report on Form FDI-102F/S in lieu of Form FDI-102F on or before April 30 of the year succeeding the year for which the report is filed.
(5) Form FDI-105, AFN Financial Structure and Related Data. Each direct investor must file this report on or before the date specified in the instructions to this report and published in the FEDERAL REGISTER at the time the form is distributed or made available.
(6) Form FDI-106, Standard Certificate for Repayment of Borrowings Made on or after May 1, 1970. In order for positive direct investment resulting from the repayment of borrowing made by a direct investor or its affiliated foreign national to be authorized under Subpart J of this part, a certificate on Form FDI106 must be filed not later than 10 days after the direct investor makes the borrowing or guarantees the borrowing by its affiliated foreign national.
(7) Form FD1-107, Adjusted 1965–67 Base Period and Prior Years' Annual Earnings Report for DIS Engaging in § 312(c) (1) Transactions. If the filing of
Forms FDI-107 is elected under § 1000.312(c)(1)(i), this report must be filed by the acquiring and divesting direct investors on or before the end of the month following the close of a calendar quarter during which the acquisition occurred. The surviving direct investor is required by $ 1000.312(c) (1) (ii) to file this report on or before the end of the month following the close of the calendar quarter during which a combination of direct investors occurred.
(c) Applications for extensions of time in which to file reports shall be made to the Office of Foreign Direct Investments and must be received by the Office prior to the time such reports are due. Applications shall contain a statement of reasons for inability to report o time. An extension of time will be given for good cause shown.
(d) Reports mailed to the Office are deemed filed on the date post-marked on the envelope in which they are mailed. Reports delivered directly to the Office are deemed filed when received as evidenced by the Office's date stamp thereon.
(e) Copies of all necessary forms, and instructions as to their preparation and filing, may be obtained from the Office of Foreign Direct Investments, Department of Commerce, Washington, D.C. 20230, or from any Field Office of the Department. [34 F.R. 9069, June 7, 1969, as amended at 36 F.R. 9507, May 26, 1971]
Subpart G-Penalties $ 1000.701 Penalties,
(a) Attention is directed to 12 U.S.C. 95a, which provides in part:
Whoever willfully violates any of the provisions of this section or of any license, order, rule, or regulation issued thereunder, shall, upon conviction, be fined not more than $10,000, or, if a natural person, may be imprisoned for not more than 10 years, or both; and any officer, director, or agent of any corporation who knowingly participates in such violation may be punished by a like fine, imprisonment, or both. As used in this section the term “person" means an individual, partnership, association, or corporation, This section is applicable to violations of any provision of this part and to violations of the provisions of any license, ruling, regulation, order, direction or instruction issued by or pursuant to the direction or authorization of the Secretary pursuant to this part or otherwise under such section,
(b) Attention is also directed to 18 authorization or for specific exemption. U.S.C. 1001, which provides:
Such applications shall contain all releWhoever, in any matter within the jurisdic
vant information and shall be filed in tion of any department or agency of the
triplicate with the Director, Office of United States knowingly and willfully falsi- Foreign Direct Investments, Department fies, conceals, or covers up by any trick, of Commerce, Washington, D.C. 20230. scheme, or device a material fact, or makes An applicant may furnish additional inany false, fictitious, or fraudulent statements formation or present views concerning or representations, or makes or uses any false the application at any time before a deciwriting or document knowing the same to
sion has been rendered thereon. The apcontain any false, fictitious or fraudulent
plication may include a request that the statement or entry, shall be fined not more than $10,000 or imprisoned not more than
Director, in his discretion, grant the ap5 years, or both.
plicant a conference with the Director [33 F.R. 53, Jan. 3, 1968]
or his designee.
(b) Decisions. Written notice of action § 1000.702 Effect upon lenders.
taken on an application shall be given Any person (other than an affiliated to the applicant. Whenever an applicaforeign national of a direct investor) tion is denied, such notice shall include a who lends money or extends credit to brief statement of the grounds therefor. such direct investor or to an affiliated [33 F.R. 9389, June 27, 1968] foreign national of such direct investor
$ 1000.802 Petitions for reconsideraand who does not have actual knowl
tion; appeals. edge, when such loan is made or credit extended (or when a commitment is giv
This section sets forth the procedures en to make the loan or extend the cred- applicable to (1) petitions to the Director it), that the use of the proceeds thereof,
for reconsideration of administrative the repayment thereof or any other
actions and (2) appeals to the Foreign transaction in connection therewith will
Direct Investments Appeals Board (the involve or constitute a violation by the
“Board”) from administrative actions direct investor of any provision of this
and decisions on petitions for reconsidpart or of any license, ruling, regulation,
eration. order, direction or instruction issued by (a) General provisions. (1) The term or pursuant to the authorization or di- “administrative action" means, with rection of the Secretary pursuant to this respect to any person, (i) a decision upon part or otherwise under $ 1000.701, may an application for a specific authorizareceive repayment thereof (together with
tion or exemption filed by such person, all interest and other fees and charges) or (ii) any action taken specifically with and otherwise participate in any other respect to such person pursuant to the transaction in connection therewith exercise of a discretionary power by the without being subject to the penalties
Secretary in accordance with any proreferred to in § 1000.701(a), and such vision of this part. The term “adminisperson's rights against the direct inves- trative action" does not include an opintor or affiliated foreign national in con- ion or ruling interpreting the regulations, nection with such loan or extension of or a decision upon a petition for reconcredit shall not in any way be affected
sideration or upon an appeal. or impaired by reason of the provisions (2) Notice of an administrative action of this part.
or of a decision rendered upon a petition (33 F.R. 11271, Aug. 8, 1968]
for reconsideration or upon an appeal
shall be deemed to have been given on Subpart H- Procedures
the date when mailed or delivered to the § 1000.801 Applications for specific au- petitioner or appellant: Provided, That thorizations and exemptions.
notice of an administrative action taken (a) Filing. Transactions subject to the
prior to the effective date of this section prohibitions contained in this part which shall be deemed to have been given on are not generally authorized may be ef- such effective date. fected only under specific authorization. (3) A petition for reconsideration Persons subject to the requirements of shall be deemed filed on the date received this part may be exempted from comply- by the Office of Foreign Direct Investing with any requirement thereof only ments. An appeal shall be deemed filed through a specific exemption. Any per- on the date received by the secretary of son may file an application for specific the Board.
(4) Any person may withdraw a petition for reconsideration or an appeal at any time prior to the date a decision is rendered thereon.
(b) Petitions for reconsideration. Any person may petition for reconsideration of an administrative action taken with respect to such person unless such person has previously appealed the same or a related administrative action to the Board and such appeal is then pending or a decision has been rendered thereon. The filing of a petition for reconsideration shall not suspend or stay the effect of the administrative action of which reconsideration is sought unless the Director, in his discretion, so orders.
(1) Form of petitions. An original and five copies of the petition for reconsideration and all supporting documents shall be submitted. The petition shall enclose a copy of the administrative action of which reconsideration is asked, and shall state the grounds upon which the petition is based and the relief requested. All facts and argument in support of the petition shall be separately identified and set forth in detail.
(2) Filing. A petition for reconsideration of an administrative action shall be filed not later than 20 days after notice of the administrative action is given to the petitioner. It shall be addressed to the Director, Office of Foreign Direct Investments, Ref.: "Petition for Reconsideration,” U.S. Department of Commerce, Washington, D.C. 20230. If a petition is withdrawn, the time which has elapsed since notice of the administrative action was given to the petitioner shall not be counted as part of the time allowed for appeal. Requests for extension of time within which to file petitions for reconsideration may be granted in the discretion of the Director.
(3) Conferences. The petition may include a request that the Director, in his discretion, grant an informal conference with the Director or his designee.
(4) Decisions. The Director may dismiss the petition, may grant or deny the petition in whole or in part, or may modify all or part of the administrative action under reconsideration. Written notice of the decision shall be given to the petitioner.
(c) Appeals (1) Foreign Direct Investment Appeals Board. The Foreign Direct Investment Appeals Board is established in the Office of the Secretary. The Secretary of Commerce (without power of
delegation) shall appoint three responsible officials of the Department of Commerce, none of whom shall be employees of the Office of Foreign Direct Investments, to serve as members of the Board. The Board may, in its discretion, establish rules of procedure in addition to those set forth in this section. Any person may appeal in writing to the Board on the ground that an administrative action or a decision on petition for reconsideration with respect to such person resulted in unusual hardship upon appellant and is inconsistent with achievement of the goals and objectives of Executive Order 11387 and this part. An appeal may not be filed if such person has previously filed a petition for reconsideration respecting the same or a related administrative action and no decision has been rendered thereon or the petition has not been withdrawn. The filing of an appeal shall not suspend or stay the effect of the administrative action or decision on the petition for reconsideration under appeal unless the Board, in its. discretion, so orders.
(2) Form of appeals. An original and ten copies of the appeal and all supporting documents shall be submitted. The appeal shall enclose a copy of the allministrative action or decision on the petition for reconsideration from which appeal is made, and shall state the particulars upon which the appeal is based and the relief requested. All facts and argument in support of the appeal shall be separately identified and set forth in detail. The Board may, in its discretion, request an appellant to make an oral presentation to the Board or any member thereof, at a time and place design nated by the Board.
(3) Filing. Appeals shall be filed with the Board not later than 30 days after notice of the administrative action or decision on the petition for reconsideration has been given to the appellant. Requests for extensions of time within which to file appeals may be granted in the discretion of the Board. Appeals shall be addressed to the Secretary, Foreign Direct Investment Appeals Board, U.S. Department of Commerce, Washington, D.C. 20230.
(4) Decisions. The Board may dismiss, grant or deny the appeal in whole or in part or modify all or part of the administrative action or decision on the petition for reconsideration under appeal. Written notice of the Board's decision shall be furnished to the appellant and shall constitute final Departmental action. 133 F.R. 9389, June 27, 1968, as amended at 33 F.R. 16494, Nov. 13, 1968) $ 1000.803 Proof of authority to file
certain documents. An application for a specific authorization or exemption, a request for an interpretative opinion, a petition for reconsideration or an appeal will not be considered unless in the case of:
(a) A corporation, partnership, trust, or other unincorporated entity, it is executed by a corporate officer, general partner, trustee, or other duly authorized person who shall certify his authority to act on behalf of the entity;
(b) A natural person, it is executed and acknowledged by him; or
(c) Submission by an attorney or agent on behalf of any person, it is accompanied by a duly authorized power of attorney. 133 F.R. 9389, June 27, 1968] $ 1000.804 Amendment, modification,
or revocation. The provisions of this part and any rulings, exemptions, authorizations, instructions, waivers, orders, or forms issued under this part may be amended, modified, or revoked at any time. Unless the Secretary otherwise specifies, the public interest requires that such amandments, modifications, or revocations be made without prior notice 133 F.R. 9389, June 27, 1968] $ 1000.805 Rules governing availability
of information. Completed Forms FDI-101, -102, -102F, -103, -104, -105, -106 or any other completed forms filed with the Office, applications and requests for specific authorizations exemptions or interpretations, petitions for reconsideration, appeals, materials submitted thereunder, and decisions thereon are considered to be matters covered by 5 U.S.C. 552(b). Other information, records, and material of the Office of Foreign Direct Investments if required by 5 U.S.C. 552 to be made available to the public shall be available in accordance with the provisions of Department Order 64 of the Secretary of Commerce (32 F.R. 9643, July 4, 1967) and in accordance with the provisions of Part 4 of this title (32 F.R. 9643, July 4, 1967). (34 F.R. 9070, June 7, 1969)
f 1000.806 Delegations.
Any function, duty or authority under this part may be performed or exercised by the Secretary or any person, agency or instrumentality designated by him. (directly or indirectly by one or more redelegations of authority); and the term. “Secretary,” as used in this part, shall include any such designated person, agency, or instrumentality, as applicable. 133 F.R. 11711, Aug. 17, 1968) Subpart l-Direct and Indirect Inter
ests; Affiliated, Associated and Family Groups; Ownership of Direct Investors; Rules for Reporting SOURCE: The provisions of this Subpart I appear at 33 F.R. 11711, Aug. 17, 1968, unless Otherwise noted. S 1000.901 Direct interests.
A direct interest in a person is an interest which is not owned through an intervening person or chain of persons. The amount of a direct interest owned by one person in another person is calculated according to the following rules:
(a) The amoult of a direct interest riwned by a person in a corporation is ihe percentage of the total combined voting power of all outstanding securities of the corporation possessing voting power represented by such securities which are beneficially owned by such person or in respect of which such person beneficially owns voting trust certificates, depositary receipts or other similar instruments representing such securities. Voting power means the power presently to vote in the election of the directors of the corporation or, if the corporation does not have directors, in the election or appointment of persons performing management functions or functions supervisory of management.
(b) The amount of a direct interest owned by a person in a partnership, trust, or business venture which is not a corporation is such person's percentage share in the profits of such organization: Provided, That if an interest in any such organization shall entitle the owner to a fixed amount out of, rather than a percentage of profits, or another arrangement is in effect which may cause the interest in profits to vary in accordance with future conditions or contingencies, the interest shall be calculated by reference to the proportion of the profits of the organization actually distributed or