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[Federal Register Volume 77, Number 160 (Friday, August 17, 2012)]
[Rules and Regulations]
[Pages 49721-49722]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20147]

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DEPARTMENT OF COMMERCE

Bureau of Economic Analysis

15 CFR Part 801

[Docket No. 111012619-2294-04]
RIN 0691-AA81

International Services Surveys and Direct Investment Surveys 
Reporting

AGENCY: Bureau of Economic Analysis.

ACTION: Notice of clarification.

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SUMMARY: The Bureau of Economic Analysis (BEA) issues this document to 
clarify for the public a rule BEA published in April 2012 that set out 
new procedures BEA will follow to collect data on international trade 
in services and direct investment surveys. The surveys are provided for 
by the International Investment and Trade in Services Survey Act (the 
Act) and the Omnibus Trade and Competitiveness Act of 1988. 
Specifically, BEA clarifies that the previously issued rule does not 
have retroactive effect, and that those entities required to complete 
surveys that BEA is currently conducting based on rules creating those 
surveys--the 2011 BE-11, 2011 BE-15, 2012 BE-12, 2012 BE-29, 2012 BE-
120, and all 2012 quarterly surveys--must still complete those surveys.

DATES: August 17, 2012.

FOR FURTHER INFORMATION CONTACT: David H. Galler, Chief, Direct 
Investment Division (BE-50), Bureau of Economic Analysis, U.S. 
Department of Commerce, Washington, DC 20230; email 
David.Galler@bea.gov or phone (202) 606-9835.

SUPPLEMENTARY INFORMATION: The International Investment and Trade in 
Services Survey Act (the Act) and the Omnibus Trade and Competitiveness 
Act of 1988 both require BEA to collect comprehensive and reliable 
information on international trade in services and direct investment 
from all U.S. persons coming within the reporting requirements. For 
many years, BEA conducted these surveys only after implementing the 
surveys through notice and comment rulemaking procedures. See, e.g., 
Direct Investment Surveys: BE-12, Benchmark Survey of Foreign Direct 
Investment in the United States at 76 FR 79054 (December 21, 2011) or 
International Services Surveys: BE-150, Quarterly Survey of Cross-
Border Credit, Debit, and Charge Card Transactions at 77 FR 10958 
(February 24, 2012). Issuing the surveys using the notice and comment 
procedures of the Administrative Procedure Act, 5 U.S.C. 553 (APA) 
provided all potential filers

[[Page 49722]]

with constructive notice of the surveys as well as of their requirement 
to complete them. See 44 U.S.C. 1507 (filing a document with the 
Federal Register ``is sufficient to give notice of the contents of the 
document to the person subject to or affected by it''). However, 
issuing surveys through notice and comment was not required by statute. 
Additionally, over time BEA found that going through the notice and 
comment requirements of the APA to prepare and issue surveys on a 
routine basis was time-consuming, and determined that it could collect 
such information just as, or perhaps more, efficiently by issuing the 
surveys through notices, rather than through individual rulemakings, 
and by informing respondents directly of the need to complete the 
surveys. See 77 FR 772 (January 6, 2012).
    To make this change, on April 24, 2012, BEA published in the 
Federal Register a final rule titled, ``International Services Surveys 
and Direct Investment Surveys Reporting,'' 77 FR 24373. That rule 
amended BEA's regulations at 15 CFR parts 801-807, and stated that BEA 
will no longer issue most surveys required under the Act or the Omnibus 
Trade and Competitiveness Act of 1988 following notice and comment 
rulemaking procedures under the APA. BEA will now, going forward, issue 
notices of its surveys in the Federal Register and individually to U.S. 
persons required to complete the surveys. See 15 CFR 801.3.
    The purpose of this notice is to clarify to respondents that the 
final rule did not alter any pre-existing response obligations; that 
is, the rule amending BEA's regulations at 15 CFR parts 801-807 does 
not have retroactive effect. We also note that the APA generally 
prohibits an agency from implementing a rule with retroactive effect. 
Direct investment and international trade in services surveys that BEA 
is currently conducting will continue to operate under the regulations 
established under their most recent rulemaking action prior to April 
24, 2012. For example, entities required by former 15 CFR 806.14 to 
complete the BE-11 Annual Survey of U.S. Direct Investment Abroad (see 
75 FR 80294) for fiscal year 2011 are not freed of that obligation 
until they receive notice from BEA of a new BE-11 survey. The new 
procedures for implementing surveys through notices in the Federal 
Register and through direct notices to respondents will be used only 
for surveys issued after the April 24, 2012 final rule.
    Accordingly, BEA's new survey procedures only apply to surveys it 
will issue in the future, not to those that it issued prior to April 
24, 2012 following notice and comment rulemaking according to the APA.

    Dated: August 9, 2012.
Joel D. Platt,
Acting Director, Bureau of Economic Analysis.
[FR Doc. 2012-20147 Filed 8-16-12; 8:45 am]
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