[Federal Register Volume 73, Number 232 (Tuesday, December 2, 2008)]
[Rules and Regulations]
[Pages 73181-73182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28620]


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DEPARTMENT OF JUSTICE

28 CFR Part 73

[Docket No. OAG 124; A.G. Order No. 3018-2008]


Amendments to the Justice Department Regulations Regarding 
Countries Whose Agents Do Not Qualify for the Legal Commercial 
Transaction Exemption Provided in 18 U.S.C. 951(d)(4)

AGENCY: National Security Division, Justice.

ACTION: Final rule.

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SUMMARY: This rule makes two amendments to the Department of Justice 
regulations regarding countries whose agents do not qualify for the 
legal commercial transaction exemption provided in 18 U.S.C. 951(d)(4).

DATES: Effective Date: December 2, 2008.

FOR FURTHER INFORMATION CONTACT: John C. Demers, National Security 
Division, U.S. Department of Justice, Washington, DC 20530, (202) 514-
1057.

SUPPLEMENTARY INFORMATION: This rule revises the Department's 
regulations in 28 CFR part 73 to make them consistent with the amended 
reporting requirements in 18 U.S.C. 951 for agents of foreign 
governments.
    Section 951 prohibits anyone from ``act[ing] in the United States 
as an agent of a foreign government without prior notification to the 
Attorney General.'' 18 U.S.C. 951(a). Section 951 exempts a broad 
category of conduct from its scope. Under section 951(d), an ``agent of 
a foreign government'' does not include ``any person engaged in a legal 
commercial transaction.'' 18 U.S.C. 951(d)(4). In limited situations, 
however, this legal commercial transaction exemption does not apply. 
Specifically, under section 951(e)(2)(A), this exemption does not apply 
to the agents of certain countries. Before 1993, the statute provided 
that the countries to which the exemption did not apply were ``the 
Soviet Union, the German Democratic Republic, Hungary, Czechoslovakia, 
Poland, Bulgaria, Romania or Cuba.'' The Department's implementing 
regulation, which became effective on November 6, 1989, repeated this 
list of countries.
    Subsequently, Congress removed all but Cuba from the list of 
countries enumerated in section 951(e)(2)(A) and substituted for it a 
more general provision covering ``Cuba or any other country that the 
President determines (and so reports to the Congress) poses a threat to 
the national security interest of the United States for purposes of 
this section.'' See Pub. L. 103-199 Sec.  202 (Dec. 17, 1993) (amending 
section 951(e)(2)(A)). No corresponding change was made to the Justice 
Department's regulations.
    This rule would make two amendments to the Department's regulations 
under 28 CFR part 73.2(a) to reflect the current statutory scope of the 
legal commercial transaction exemption. First, the proposed order would 
delete ``the Soviet Union, the German Democratic Republic, Hungary, 
Czechoslovakia, Poland, Bulgaria, Romania or Cuba;'' from 28 CFR 
73.2(a). Second, the proposed order would add ``Cuba or any other 
country that the President determines (and so reports to the Congress) 
poses a threat to the national security interest of the United States 
for purposes of 18 U.S.C. 951;'' after the words ``such person is an 
agent of'' and before the words ``has been convicted * * *''. These 
amendments would synchronize the statute and regulations.

Administrative Procedure Act

    The rule pertains to a foreign affairs function of the United 
States. Accordingly, pursuant to 5 U.S.C. 553(a)(1), the requirements 
of 5 U.S.C. 553 do not apply. Furthermore, even if the requirements of 
5 U.S.C. 553 did apply, the Department believes that good cause exists 
under 5 U.S.C. 553(b)(B) and (d)(3) for immediate implementation of 
this final rule without prior notice and comment. Such notice and 
comment would be unnecessary because this rule is a nondiscretionary 
ministerial action to conform the Department's regulations to 18 U.S.C. 
951(e)(2)(A)'s amended reporting requirements for agents of foreign 
governments.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this rule and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This rule merely 
conforms the Department's regulations to 18 U.S.C. 951(e)(2)(A)'s 
amended reporting requirements for agents of foreign governments. 
Furthermore, this rule applies only to agents of a limited number of 
foreign governments.

Executive Order 12866

    Because the amendments to 28 CFR part 73 involve a foreign affairs 
function of the United States, the provisions of Executive Order 12866, 
in particular the provisions requiring rules to be reviewed by the 
Office of Management and Budget, do not apply.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, the Department has determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federal summary impact statement.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995, 2 
U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule'' as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

Congressional Review Act

    The Department has determined that this action pertains to the 
foreign affairs function of the United States and accordingly is not a 
``rule'' as that term is used by the Congressional Review Act

[[Page 73182]]

(subtitle E of the Small Business Regulatory Enforcement Fairness Act 
of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not 
apply.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) does not apply to this rule 
change. See 44 U.S.C. 3501-3521. The PRA imposes certain protocol for 
the ``collection of information'' by government agencies. The Act 
defines the ``collection of information'' as ``the obtaining, causing 
to be obtained, soliciting, or requiring the disclosure to third 
parties or the public [of certain information]'' pursuant to 
requirements ``imposed on ten or more persons.'' 44 U.S.C. 3502(3)(A). 
Regulations promulgated by the Office of Management and Budget to 
implement the PRA explain that `` `ten or more persons' refers to the 
persons to whom a collection of information is addressed by the agency 
within any 12-month period.'' 5 CFR 1320.3(c)(4). Current Department of 
Justice regulations implementing the Foreign Agents Registration Act 
require the agents of Cuba and seven other countries to register before 
those agents may engage in legal commercial transactions in the United 
States. 28 CFR part 73.2(a). Fewer than ten persons have registered per 
year under these regulations. The proposed rule would eliminate all 
countries except Cuba from the list of nations in these regulations, a 
change that would mirror the statutory exception to the legal 
commercial transaction exemption to the registration requirements 
imposed by section 951, and is not expected to increase the number of 
persons registering.

List of Subjects in 28 CFR Part 73

    Agents of foreign governments; Foreign officials; Foreign 
relations.

0
Accordingly, by virtue of the authority vested in me as Attorney 
General, including 18 U.S.C. 951 and 28 U.S.C. 509 and 510, Part 73 of 
Chapter I of title 28 of the Code of Federal Regulations is amended as 
follows:

PART 73.2--EXCEPTIONS

0
1. The authority citation for part 73 continues to read as follows:

    Authority: 18 U.S.C. 951; 28 U.S.C. 509, 510.


0
2. Revise paragraph (a) of part 73.2 to read as follows:


Sec.  73.2  Exceptions.

    (a) The exemption provided in 18 U.S.C. 951(d)(4) for a ``legal 
commercial transaction'' shall not be available to any person acting 
subject to the direction or control of a foreign government or official 
where such person is an agent of Cuba or any other country that the 
President determines (and so reports to the Congress) poses a threat to 
the national security interest of the United States for purposes of 18 
U.S.C. 951; or has been convicted of or entered a plea of nolo 
contendere to any offense under 18 U.S.C. 792-799, 831, or 2381, or 
under section 11 of the Export Administration Act of 1979, 50 U.S.C. 
app. 2410.
* * * * *

    Dated: November 24, 2008.
Michael B. Mukasey,
Attorney General.
 [FR Doc. E8-28620 Filed 12-1-08; 8:45 am]
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