[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Proposed Rules]
[Pages 70787-70790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26936]



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DEPARTMENT OF JUSTICE

28 CFR Part 5

[Docket No. NSD 102]
RIN 1105-AB67


Clarification and Modernization of Foreign Agents Registration 
Act (FARA) Implementing Regulations

AGENCY: National Security Division, Department of Justice.

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: The Department of Justice's National Security Division (NSD) 
anticipates issuing a Notice of Proposed Rulemaking (NPRM) that would 
amend or otherwise clarify the scope of certain exemptions, update 
various definitions, and make other modernizing changes to the Attorney 
General's Foreign Agents Registration Act (FARA) implementing 
regulations. The Department is issuing this Advanced Notice of Public 
Rulemaking (ANPRM) to solicit suggestions for any potential amendments 
to, or clarifications of, the current FARA implementing regulations.

DATES: Electronic comments must be submitted and written comments must 
be postmarked or otherwise indicate a shipping date on or before 
February 11, 2022. Written comments postmarked on or before that date 
will be considered timely. The electronic Federal Docket Management 
System at www.regulations.gov will accept electronic comments until 
11:59 p.m. Eastern Time on that date.

ADDRESSES: If you wish to provide comments regarding this rulemaking, 
you must submit comments, identified by the agency name and reference 
RIN 1105-AB67 or NSD Docket No. 102, by one of the two methods below:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
     Mail/Commercial Courier: Paper comments that duplicate an 
electronic submission are unnecessary. If you wish to submit a paper 
comment in lieu of electronic submission, please direct the mail/
shipment to: Jennifer Kennedy Gellie, Chief, FARA Unit, 
Counterintelligence and Export Control Section, National Security 
Division, U.S. Department of Justice, 175 N Street NE, Constitution 
Square, Building 3--Room 1.100, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Jennifer Kennedy Gellie, Chief, FARA 
Unit, Counterintelligence and Export Control Section, National Security 
Division, U.S. Department of Justice, 175 N Street NE, Constitution 
Square, Building 3--Room 1.100, Washington, DC 20002; telephone: (202) 
233-0776 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
ANPRM via one of the two methods identified above and by the deadline 
stated above. All comments must be submitted in the English language, 
or accompanied by an English language translation.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    The Department may withhold from public viewing information 
provided in comments that it determines is offensive or may adversely 
impact the privacy of a third party. For additional information, please 
read the privacy notice that is available via the link in the footer of 
https://www.regulations.gov.
    To inspect the agency's public docket file in person, you must make 
an appointment with the FARA Unit. Please see the FOR FURTHER 
INFORMATION CONTACT paragraph above for FARA Unit contact information.

II. Background

    The Foreign Agents Registration Act of 1938, 22 U.S.C. 611 et seq. 
(FARA or the Act) was enacted to ensure that the government and the 
American people are aware of people who are acting within this country 
as agents of foreign principals and are informed about their activities 
undertaken to influence public opinion or governmental action on 
political or policy matters. FARA requires that people acting as agents 
of foreign principals, within the meaning of the statute, make periodic 
public disclosures of their agency relationship and activities, as well 
as their receipts and disbursements in support of these activities. 
Disclosure of the required information allows the American public and 
government officials to evaluate the agents' statements and activities 
with knowledge of the foreign interests they serve. The FARA Unit of 
the Counterintelligence and Export Control Section (CES) in the 
National Security Division (NSD) is responsible for the administration 
and enforcement of FARA.
    The Act gives the Attorney General the authority to issue ``rules, 
regulations, and forms as he may deem necessary to carry out the 
provisions'' of the Act.\1\ Under that authority, the Attorney General 
has issued regulations covering a range of administrative and 
enforcement functions.\2\ The regulations were last amended in 2007. 
The Department is now considering amending and updating the regulations 
to clarify key substantive provisions, such as the attorney and 
commercial exemptions. Other changes under consideration would 
modernize the regulations to clarify how they apply to social media and 
electronic filing, among other things.
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    \1\ See 22 U.S.C. 620; see also id. 612(f), 614(c).
    \2\ See 28 CFR 5.1-5.1101.
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III. Request for Public Comments

    Before issuing a NPRM with specific regulatory text for public 
comment, the Department is seeking preliminary input from the public on 
the regulations as a whole and in response to the specific questions 
set forth below:

A. Agency

    Pursuant to 22 U.S.C. 611(c), an ``agent of a foreign principal'' 
is ``any person who acts as an agent, representative, employee, or 
servant, or any person who acts in any other capacity at the order, 
request, or under the direction or control, of a foreign principal or 
of a person any of whose activities are directly or indirectly 
supervised, directed, controlled, financed, or subsidized in whole or 
in major part by a foreign principal,'' who does any of the following:
     Engages within the United States in political activities, 
such as intending to influence any U.S. Government official or the 
American public regarding U.S. domestic or foreign policy or the 
political or public interests of a foreign government or foreign 
political party;
     Acts within the United States as a public relations 
counsel, publicity agent, information service employee, or political 
consultant;

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     Solicits, collects, disburses, or dispenses contributions, 
loans, money, or other things of value within the United States; or
     Represents within the United States the interests of a 
foreign principal before U.S. Government officials or agencies.
    In addition, 22 U.S.C. 611(p) defines ``political consultant'' to 
mean ``any person who engages in informing or advising any other person 
with reference to the domestic or foreign policies of the United States 
or the political or public interest, policies, or relations of a 
foreign country or of a foreign political party.''
    Question 1: Should the Department incorporate into its regulations 
some or all of its guidance addressing the scope of agency, which is 
currently published as part of the FARA Unit's FAQs on its website? See 
https://www.justice.gov/nsd-fara/page/file/1279836/download. If so, 
which aspects of that guidance should be incorporated? Should any 
additional guidance currently included in the FAQs, or any other 
guidance, be incorporated into the regulations?
    Question 2: Should the Department issue new regulations to clarify 
the meaning of the term ``political consultant,'' including, for 
example, by providing that this term is generally limited to those who 
conduct ``political activities,'' as defined in 22 U.S.C. 611(o)?

B. Exemptions

1. Commercial Exemptions
    Two of the three exemptions in 22 U.S.C. 613(d) apply to ``[a]ny 
person engaging or agreeing to engage only (1) in private and 
nonpolitical activities in furtherance of the bona fide trade or 
commerce of such foreign principal; or (2) in other activities not 
serving predominantly a foreign interest.'' In 28 CFR 5.304(b), the 
word ``private'' is defined to include activities on behalf of a 
foreign principal that is ``owned or controlled by a foreign 
government, so long as the activities do not directly promote the 
public or political interests of the foreign government.'' For 
activities on behalf of state-owned enterprises, 28 CFR 5.304(c) 
provides that the phrase ``not serving predominantly a foreign 
interest'' includes ``political activities'' that:
     Are ``directly in furtherance of the bona fide commercial, 
industrial, or financial operations of the foreign corporations'';
     Are not ``directed by a foreign government or foreign 
political party''; and
     ``[D]o not directly promote the public or political 
interests of a foreign government or of a foreign political party.''
    Because the regulation in 5.304(c) addresses only activities on 
behalf of state-owned enterprises, it does not provide guidance on 
whether political activities on behalf of other foreign principals fall 
within the exemption. The Department is considering issuing regulations 
to address contexts not currently covered by the existing regulations. 
The Department is also seeking comment on whether to revise the 
existing regulations to address the scope of the exemptions, such as by 
limiting the scope of the exemptions so that they would not apply if 
the activities promoted--either directly or indirectly--the public or 
political interests of a foreign government or foreign political party.
    Question 3: Should the Department issue a regulation addressing how 
22 U.S.C. 613(d)(2) applies to political activities on behalf of 
foreign principals other than state-owned enterprises? If so, how 
should the Department amend the regulation to address when such 
activities do not serve ``predominantly a foreign interest''?
    Question 4: Is the language in 28 CFR 5.304(b), (c), which provides 
that the exemptions in sections 613(d)(1) and (d)(2) do not apply to 
activities that ``directly promote'' the public or political interests 
of a foreign government or political party, sufficiently clear? And 
does that language appropriately describe the full range of activities 
that are outside the scope of the exemptions because they promote such 
interests, including indirectly? Should the language be clarified, and, 
if so, how?
    Question 5: What other changes, if any, should the Department make 
to the current regulations at 28 CFR 5.304(b) and (c) relating to the 
exemptions in 22 U.S.C. 613(d)(1) and (2)?
2. Exemption for Religious, Scholastic, or Scientific Pursuits
    This statutory exemption, 22 U.S.C. 613(e), applies to ``[a]ny 
person engaging or agreeing to engage only in activities in furtherance 
of bona fide religious, scholastic, academic, or scientific pursuits or 
of the fine arts.'' The regulation in 28 CFR 5.304(d) provides that 
this exemption ``shall not be available to any person described therein 
if he engages in political activities as defined in [22 U.S.C. 611(o)] 
for or in the interests of his foreign principal.''
    Question 6: Should the Department issue additional or clarified 
regulations regarding this exemption to clarify the circumstances in 
which this exemption applies? If so, how should those additional 
regulations clarify the scope of the exemption?
3. Exemption for Persons Qualified To Practice Law
    This statutory exemption, 22 U.S.C. 613(g), applies to ``[a]ny 
person qualified to practice law, insofar as he engages or agrees to 
engage in the legal representation of a disclosed foreign principal 
before any court of law or any agency of the Government of the United 
States,'' provided that for purposes of the exemption ``legal 
representation does not include attempts to influence or persuade 
agency personnel or officials other than in the course of judicial 
proceedings, criminal or civil law enforcement inquiries, 
investigations, or proceedings, or agency proceedings required by 
statute or regulation to be conducted on the record.'' The exemption 
applies where a person, qualified to practice law, engages or agrees to 
engage in the legal representation of a disclosed foreign principal 
before any court or agency of the Government of the United States. The 
regulation at 28 CFR 5.306(a) provides that the exemption does not 
apply to an agreement to provide legal representation to further 
political activities, as defined by FARA, to influence or persuade 
agency personnel or officials, other than in the course of: Judicial 
proceedings; criminal or civil law enforcement inquiries, 
investigations, or proceedings; or other agency proceedings required by 
law to be conducted on the record. The exemption may apply to an 
attorney's activities that relate to such proceedings so long as the 
activities do not go beyond the bounds of normal legal representation 
of a client in the matter.
    Question 7: Should the Department amend 28 CFR 5.306(a) to clarify 
when activities that relate to criminal, civil, or agency proceedings 
are ``in the course of'' such proceedings because they are within the 
bounds of normal legal representation of a client in the matter for 
purposes of the exemption in 22 U.S.C. 613(g)? If so, how should the 
Department amend the regulation to address that issue?
    Question 8: What other changes, if any, should the Department make 
to 28 CFR 5.306 to clarify the scope of the exemption in 22 U.S.C. 
613(g)?
4. Additional Clarifications of Statutory Exemptions
    Question 9: Are there other aspects of the statutory exemptions 
that the Department should clarify, whether to make clear additional 
circumstances in which registration is, or is not, required?

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C. Inquiries Concerning Application of the Act

    Any present or prospective agent of a foreign principal, or the 
agent's attorney, may request from the Assistant Attorney General for 
National Security a statement of present enforcement intentions (also 
known as a ``Rule 2'' or an ``advisory opinion'') as to whether the 
agent has an obligation to register under FARA. These requests must be 
made in writing to the FARA Unit. The subject of the request must be an 
actual event, not a hypothetical situation, and may not involve only 
past conduct. Any request must be specific and contain in detail all 
relevant and material information, including the names of the potential 
agents and principals, the nature of their activities, and a copy of 
any existing or proposed contract. Responding to each request involves 
significant attorney research and analysis to address fully the facts 
presented in the request.
    Question 10: Should the Department revise 28 CFR 5.2(i) to allow 
the National Security Division longer than 30 days to respond to a Rule 
2 request, with the time to begin on the date it receives all of the 
information it needs to evaluate the request? If so, what is a 
reasonable amount of time?
    Question 11: Should the Department include with its published Rule 
2 advisory opinions the corresponding request, with appropriate 
redactions to protect confidential commercial or financial information, 
so that the public may better understand the factual context of the 
opinion?
    Question 12: What other changes, if any, should the Department make 
to the current process for using advisory opinions pursuant to 28 CFR 
5.2?

D. Labeling Informational Materials

    22 U.S.C. 614(b) requires that any informational materials that are 
or will be disseminated to two or more persons by an agent of a foreign 
principal contain a ``conspicuous statement'' that the materials are 
distributed by an agent of a foreign principal and that additional 
information is on file with the U.S. Department of Justice. Section 
614(b) also provides that the ``Attorney General may by rule define 
what constitutes a conspicuous statement.'' The regulations 
implementing this statutory requirement were last amended in 2003 and 
do not reflect the challenges of labeling informational materials 
disseminated through various online media platforms.
    Question 13: Should the Department define by regulation what 
constitutes ``informational materials''? If so, how should it define 
the term?
    Question 14: What changes, if any, should the Department make to 
the current regulation, 22 CFR 5.402, relating to labeling 
informational materials to account for the numerous ways informational 
materials may appear online? For example, how should the Department 
require conspicuous statements on social media accounts or in other 
communications, particularly where text space is limited?
    Question 15: Should the Department amend the current regulation, 22 
CFR 5.402(d), relating to ``labeling informational materials'' that are 
``televised or broadcast'' by requiring that the conspicuous statement 
appear at the end of the broadcast (as well as at the beginning), if 
the broadcast is of sufficient duration, and at least once-per hour for 
each broadcast with a duration of more than one hour, or are there 
other ways such information should be labeled?
    Question 16: Should any changes to regulations relating to the 
labeling of ``televised or broadcast'' informational materials also 
address audio and/or visual informational materials carried by an 
online provider? And, if so, should the regulations addressing labeling 
of such audio and/or visual information materials be the same as for 
televised broadcasts or should they be tailored to online materials; 
and, if so, how?
    Question 17: Should the Department amend 22 CFR 5.402 to ensure 
that the reference to the ``foreign principal'' in the conspicuous 
statement includes the country in which the foreign principal is 
located and the foreign principal's relation, if any, to a foreign 
government or foreign political party; and, if so, how should the 
regulations be clarified in this regard?

E. E-Filing

    The Department now uses an e-File system with web-fillable forms. 
This system makes it easier for new registrants to keep their 
registrations current and helps the public search for and download 
information about FARA registrants.
    Questions 18: What changes, if any, should the Department make to 
its regulations to account for the e-File system that was adopted after 
the regulations were last updated in 2007?

F. Miscellaneous Changes

    While administering FARA, the FARA Unit has found that being able 
to contact agents via business telephone numbers and business email 
addresses promotes the efficient administration of FARA. Neither the 
Act nor the current regulations requires agents to provide this 
information.
    Question 19: Should the Department amend 28 CFR 5.1 to require--
separate from the registration statements, supplements, and related 
documentation--that agents provide their business telephone numbers and 
business email addresses to facilitate better communications with the 
FARA Unit?
    Comments that will provide the most assistance to the Department in 
issuing a NPRM will be those that answer one or more of the specific 
questions asked; explain what changes, if any, should be made to the 
regulations and why; and support that position with accompanying data, 
information, or legal authority.
    In addition to providing comments on the specific nineteen 
questions listed above, the Department is also seeking input from the 
public on any other aspect of the current FARA regulatory structure 
that the public believes should involve the issuance, amendment, or 
rescinding of any regulation not otherwise identified above.

IV. Regulatory Certifications

    This ANPRM has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), The Principles of Regulation, in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation. This ANPRM is not a ``significant'' 
regulatory action pursuant to Executive Order 12866 and, accordingly, 
the Office of Management and Budget (OMB) has not reviewed it.
    This action does not propose or impose any requirements; rather, 
this ANPRM is being published to seek information and comments from the 
public about possible revisions and amendments to FARA's current 
regulatory scheme.
    The requirements of the Regulatory Flexibility Act (RFA) do not 
apply to this action because, at this stage, it is an ANPRM and not a 
``rule'' as defined in 5 U.S.C. 601.
    Following review of the comments received in response to this 
ANPRM, if NSD proceeds with a notice or notices of proposed rulemaking 
regarding this matter, the Department will conduct all relevant 
analyses as required by statute or Executive Order.


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    Dated: December 7, 2021.
Matthew G. Olsen,
Assistant Attorney General, National Security Division.
[FR Doc. 2021-26936 Filed 12-10-21; 8:45 am]
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