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 FDI-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 on 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

(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 U.S.C. 1001, which provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies conceals, or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.

[33 F.R. 53, Jan. 3, 1968]

§ 1000.702

Effect upon lenders.

Any person (other than an affiliated foreign national of a direct investor) who lends money or extends credit to such direct investor or to an affiliated foreign national of such direct investor and who does not have actual knowledge, when such loan is made or credit extended (or when a commitment is given to make the loan or extend the credit), that the use of the proceeds thereof, the repayment thereof or any other transaction in connection therewith will involve or constitute a violation by the direct investor of any provision of this part or of any license, ruling, regulation, order, direction or instruction issued by or pursuant to the authorization or direction of the Secretary pursuant to this part or otherwise under § 1000.701, may receive repayment thereof (together with all interest and other fees and charges) and otherwise participate in any other transaction in connection therewith without being subject to the penalties referred to in § 1000.701(a), and such person's rights against the direct investor or affiliated foreign national in connection with such loan or extension of credit shall not in any way be affected or impaired by reason of the provisions of this part.

[33 F.R. 11271, Aug. 8, 1968]

Subpart H-Procedures

§ 1000.801 Applications for specific authorizations and exemptions.

(a) Filing. Transactions subject to the prohibitions contained in this part which are not generally authorized may be effected only under specific authorization. Persons subject to the requirements of this part may be exempted from complying with any requirement thereof only through a specific exemption. Any person may file an application for specific

authorization or for specific exemption. Such applications shall contain all relevant information and shall be filed in triplicate with the Director, Office of Foreign Direct Investments, Department of Commerce, Washington, D.C. 20230. An applicant may furnish additional information or present views concerning the application at any time before a decision has been rendered thereon. The application may include a request that the Director, in his discretion, grant the applicant a conference with the Director or his designee.

(b) Decisions. Written notice of action taken on an application shall be given to the applicant. Whenever an application is denied, such notice shall include a brief statement of the grounds therefor. [33 F.R. 9389, June 27, 1968]

§ 1000.802 Petitions for reconsideration; appeals.

This section sets forth the procedures applicable to (1) petitions to the Director for reconsideration of administrative actions and (2) appeals to the Foreign Direct Investments Appeals Board (the "Board") from administrative actions and decisions on petitions for reconsideration.

(a) General provisions. (1) The term "administrative action" means, with respect to any person, (i) a decision upon an application for a specific authorization or exemption filed by such person, or (ii) any action taken specifically with respect to such person pursuant to the exercise of a discretionary power by the Secretary in accordance with any provision of this part. The term "administrative action" does not include an opinion or ruling interpreting the regulations, or a decision upon a petition for reconsideration or upon an appeal.

(2) Notice of an administrative action or of a decision rendered upon a petition for reconsideration or upon an appeal shall be deemed to have been given on the date when mailed or delivered to the petitioner or appellant: Provided, That notice of an administrative action taken prior to the effective date of this section shall be deemed to have been given on such effective date.

(3) A petition for reconsideration shall be deemed filed on the date received by the Office of Foreign Direct Investments. An appeal shall be deemed filed on the date received by the secretary of 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 administrative 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 designated 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. [33 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.

[33 F.R. 9389, June 27, 1968]

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 amendments, modifications, or revocations be made without prior notice

[33 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]

§ 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, [33 F.R. 11711, Aug. 17, 1968]

Subpart -Direct and Indirect Interests; 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.

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 amount of a direct interest owned by a person in a corporation is the 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

An indirect interest in a person is an interest owned through ownership of an intervening person or chain of persons. The amount of an indirect interest owned by one person in another person is calculated by multiplying together the direct interests of each person in the chain in each person in the chain (treating stock of a higher tier corporation held by a lower tier corporation as not outstanding).

§ 1000.903 Affiliated groups.

(a) For purposes of paragraph (b) of this section, an “affiliate" of a person within the United States means any other person (other than an individual), wheresoever located, in which the aggregate of direct interests owned by such person within the United States and any affiliate or affiliates (as herein defined) of such person exceeds 50 percent.

(b) An "affiliated group" means a person within the United States and all of its affiliates which are persons within the United States; such person and such affiliates are members of the affiliated group. Any person which owns a direct or indirect interest in a member of an affiliated group but which is not itself a member thereof shall be deemed to own a direct or indirect interest, as the case may be, in the affiliated group.

(c) Except as provided in § 1000.906 (b) (1), the members of an affiliated group shall, for all purposes of this part, be considered a single person within the United States.

(d) An affiliated group shall file reports under § 1000.602 in the manner provided in § 1000.907.

§ 1000.904 Family groups.

(a) For all purposes of this part, an individual who is a person within the United States, his spouse (unless legally separated), and all relatives of such individual or his spouse residing with such

(a) An "associated group" consists of two or more persons within the United States (one or all of which may be an affiliated or family group) which, pursuant to an express or implied agreement or understanding, act in concert to own or acquire interests in the same corporation or partnership organized under the laws of a foreign country or in the same business venture conducted within a foreign country: Provided, That, the interests are not owned or acquired through a corporation, partnership (other than a joint venture) or trust which is a person within the United States (without regard to whether the corporation, partnership, or trust is organized or created for the purpose of owning or acquiring such interests); And provided further, That the aggregate of such interests would, if owned or acquired by only one of such persons, cause such person to be a direct investor in the corporation, partnership, or business venture under § 1000.305.

(b) (1) Notwithstanding the provisions of § 1000.305, each member of an associated group shall be deemed a direct investor in the corporation, partnership, or business venture in which the interests are owned or acquired (hereinafter referred to as the "group affiliated foreign national") for all purposes of this part: Provided, That, a person which is a direct investor by virtue of this paragraph (b) (1) but not by virtue of the provisions of § 1000.305 shall not be subject to the provisions of § 1000.203.

(2) (i) Notwithstanding the provisions of 1000.503, positive direct investment made during any year, commencing with the year 1970, by members of an associated group that elect § 1000.503 in group affiliated foreign nationals of the associated group shall not be authorized by § 1000.503, unless the aggregate of direct investment made during the year by all such members (being considered for purposes of this subdivision as a single direct investor) in all group affiliated foreign nationals would have been authorized by § 1000.503.

(ii) Notwithstanding the provisions of § 1000.507, positive direct investment made during any year, commencing with