(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 If a petition is withdrawn, the time which has elapsed since notice of the administrative action was given to the petitioner shall not be counted as part of the time allowed for appeal.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]

§ 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 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]

66-032-72-28

§ 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.

§ 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 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

distributable to such person at the close of the most recent annual accounting period of the organization.

(c) If the rules set forth in paragraphs (a) or (b) of this section are not applicable to a particular corporation, partnership, trust or business venture in which such person owns an interest, the amount of the interest shall be calculated by any reasonable method which fairly reflects the amount thereof.

§ 1000.902 Indirect interests.

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

the year 1970, by members of an associated group that elect § 1000.507 in group affiliated foreign nationals of the associated group shall not be authorized by § 1000.507, 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 § 1000.507.

(iii) If one or more members of an associated group elect § 1000.503 and one or more other members of the group elect § 1000.507, for any year commencing with the year 1971, positive direct investment by such members in group affiliated foreign nationals shall not be authorized by § 1000.503 or § 1000.507, unless the algebraic sum of the following is not in excess of $2 million: Aggregate direct investment made during the year pursuant to § 1000.503 in all group affiliated foreign nationals by the members electing § 1000.503 plus aggregate direct investment made during the year pursuant to § 1000.507 (a) (1) and (b) in all group affiliated foreign nationals by the members electing § 1000.507.

(3) Unless the election referred to in § 1000.907 (c) (2) has been made and approved by the Secretary, each member of an associated group shall file separate reports under § 1000.602 in the manner provided in § 1000.907.

[33 F.R. 11711, Aug. 17, 1968, as amended at 35 F.R. 7226, May 7, 1970; 36 F.R. 9507, May 26, 1971]

§ 1000.906 Ownership of direct in

vestors.

(a) (1) Unless the election provided for in paragraph (b)(1) of this section is made, no direct investment made or foreign balances held before or after the effective date by a direct investor shall be deemed to have been made or held by any other person within the United States because such other person owns or acquires a direct or indirect interest in such direct investor.

(2) A person within the United States which owns a direct or indirect interest in a direct investor may, depending on all the facts and circumstances of the particular case, be deemed to be acting for or on behalf of the direct investor if such person transfers funds or other property to affiliated foreign nationals of the direct investor.

(b) (1) Persons within the United States owning a direct interest in a

direct investor may elect not to be governed by the rule set forth in paragraph (a) (1) of this section: Provided, That this election shall not, unless the Secretary in his sole discretion determines otherwise, be available if there are more than 10 persons (whether such persons are persons within the United States or foreign nationals) which own direct interests in such direct investor. For purposes of this paragraph (b), each member of an affiliated group shall be considered a separate person within the United States.

(2) An election pursuant to subparagraph (1) of this paragraph as to any direct investor shall be made with the consent of those persons within the United States owning, in the aggregate, a majority interest in such direct investor. The election shall be evidenced by a document executed by or on behalf of all persons consenting thereto (hereinafter referred to as the "consenting owners") and such document shall be filed promptly after its execution with the Program Reports Division, Office of Foreign Direct Investments, U.S. Department of Commerce, Washington, D.C. 20230. All persons within the United States owning a direct interest in the direct investor shall be afforded a reasonable opportunity to join in the election and, if any persons within the United States owning a direct interest in the direct investor do not join in the election, the document evidencing the election shall recite that a reasonable opportunity to join in the election was in fact afforded to such persons.

(3) (i) Notwithstanding the provisions of 1000.305, if an election pursuant to subparagraph (1) of this paragraph is made as to any direct investor (hereinafter referred to in this subparagraph (3) as the "principal direct investor"), each consenting owner shall be deemed a direct investor in every affiliated foreign national of the principal direct investor for all purposes of this part. The entire amount of direct investment made and foreign balances held by the principal direct investor before and after the effective date shall be deemed to have been made or held by the consenting owners. The portion of such foreign balances and direct investment allocable to each such consenting owner shall be a fraction thereof, the numerator of such fraction to be the direct interest in the principal direct investor owned by such consenting owner and the denomi

nator of such fraction to be the aggregate of the direct interests in the principal direct investor owned by all consenting

owners.

(ii) Notwithstanding the provisions of § 1000.503, positive direct investment made (or deemed to have been made under subdivision (i) of this subparagraph) during any year, commencing with the year 1970, by consenting owners that elect § 1000.503 in an affiliated foreign national of the principal direct investor shall not be authorized by § 1000.503, unless the aggregate of direct investment made or deemed to have been made during the year by all consenting and nonconsenting owners electing § 1000.503 (such owners being considered for purposes of this subdivision as a single direct investor) in all affiliated foreign nationals of the principal direct investor would have been authorized by § 1000.503.

(iii) Notwithstanding the provisions of $1000.507, positive direct investment made (or deemed to have been made under subdivision (i) of this subparagraph) during any year, commencing with the year 1970, by consenting owners that elect 1000.507 in an affiliated foreign national of the principal direct investor shall not be authorized by § 1000.507, unless the aggregate of direct investment made or deemed to have been made during the year by all consenting and nonconsenting owners electing § 1000.507 (such owners being considered for purposes of this subdivision as a single direct investor) in all affiliated foreign nationals of the principal direct investor would have been authorized by § 1000.507.

(iv) If one or more consenting owners elect 1000.503 and one or more other consenting owners elect § 1000.507, for any year commencing with the year 1971, positive direct investment made (or deemed to have been made under subdivision (i) of this subparagraph) by such consenting owners in affiliated foreign nationals of the principal direct investor shall not be authorized by § 1000.503 or § 1000.507, unless the algebraic sum of the following is not in excess of $2 million: Aggregate direct investment made or deemed to have been made during the year pursuant to § 1000.503 in all affiliated foreign nationals of the principal direct investor by all consenting and nonconsenting owners that elect § 1000.503 plus aggregate direct

investment made or deemed to have been made during the year pursuant to § 1000.507 (a) (1) and (b) in all affiliated foreign nationals of the principal direct investor by all consenting and nonconsenting owners that elect § 1000.507.

(4) Once an election is made pursuant to subparagraph (1) of this paragraph, it may not be changed without the permission of the Secretary.

[33 F.R. 11711, Aug. 17, 1968, as amended at 35 F.R. 7227, May 7, 1970; 36 F.R. 9507, May 26, 1971]

§ 1000.907 Reporting.

(a) Except as provided in paragraph (b) (3) of this section (or unless a specific exemption from reporting is otherwise available) each person within the United States which is a direct investor by virtue of the provisions of §§ 1000.305, 1000.905 (b) (1), or 1000.906 (b) (3) (1), other than a direct investor as to which an election has been made under § 1000.906(b)(1), shall file separate reports (including Forms FDI-101 and FDI-102) under § 1000.602.

(b) (1) If a direct investor owns direct interests in one or more other direct investors as to which an election has been made under § 1000.906(b) (1) and such direct investor has consented to the election, the reports filed by the direct investor shall include, in addition to all other required information, the direct investor's fractional share (computed in accordance with § 1000.906(b) (3)(i)) of the amount of foreign balances, direct investment and other items which such direct investors would have been required to include in their reports if the elections had not been made.

(2) If a direct investor owns indirect interests in one or more other direct investors, or owns direct interests in one or more other direct investors as to which an election has not been made under § 1000.906(b) (1) or as to which such an election has been made but the direct investor has not consented thereto, reports filed by the direct investor shall not include any foreign balances held or direct investment made by such other direct investors during the relevant period before or after the effective date or any other items required to be included in the reports of such other direct investors for such period.

(3) If, by virtue of the provisions of paragraph (b) (2) of this section, a direct investor has no foreign balances or direct.