[Federal Register Volume 90, Number 1 (Thursday, January 2, 2025)]
[Proposed Rules]
[Pages 40-59]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30871]
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DEPARTMENT OF JUSTICE
28 CFR Part 5
[Docket No. NSD 102; AG Order No. 6121-2024]
RIN 1124-AA00
Amending and Clarifying Foreign Agents Registration Act
Regulations
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Justice (``DOJ,'' ``the Department'') is
proposing amendments and other clarifications to the scope of certain
exemptions, to update and add various definitions, and to make other
modernizing changes to the Attorney General's Foreign Agents
Registration Act (``FARA'') implementing regulations.
DATES: Electronic comments must be submitted and paper comments must be
postmarked or otherwise indicate a shipping date on or before March 3,
2025. Paper comments postmarked on or before that date will be
considered timely. The electronic Federal Docket Management System at
https://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 1124-AA00 or Docket No. NSD 102, by one of the two methods below:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail/Commercial Courier: Jennifer Kennedy Gellie, Chief,
Counterintelligence and Export Control Section, National Security
Division, U.S. Department of Justice, FARA Unit, 175 N Street NE,
Constitution Square, Building 3--Room 1.100, Washington, DC 20002.
Instructions: All submissions received must include the agency name
and docket number or Regulatory
[[Page 41]]
Information Number (``RIN'') for this rulemaking. Paper comments that
duplicate an electronic submission are unnecessary. All comments
received will be posted without change to https://www.regulations.gov,
including any personal information provided. For detailed instructions
on sending comments and additional information on the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Jennifer Kennedy Gellie, Chief,
Counterintelligence and Export Control Section, National Security
Division, U.S. Department of Justice, FARA Unit, 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
notice of proposed rulemaking (``NPRM'') through one of the two methods
identified above and by the deadline stated above.
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 identifiable
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
The Department may withhold from public viewing information
provided in comments that is offensive, that may adversely impact the
privacy of a third party, or for other legitimate reasons. For
additional information, please read the Privacy & Security Notice that
is available through the link in the footer of https://www.regulations.gov. The Freedom of Information Act, 5 U.S.C. 552,
applies to all comments received. 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, as amended, 22 U.S.C.
611 et seq. (``FARA'' or ``the Act''), was enacted to ensure that the
United States Government and the American people are aware of persons
who are acting within this country as agents of ``foreign principals,''
as defined by the Act, and are informed about the activities undertaken
by such agents to influence public opinion or governmental action on
political or policy matters. The Act requires that persons acting as
agents of foreign principals label the informational materials they
distribute and 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'') of DOJ 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. See 22 U.S.C. 620; see also id. 612(f),
614(c). Under that authority, the Attorney General has issued
regulations covering a range of administrative and enforcement
functions. See 28 CFR 5.1-5.1101. The regulations were last amended in
2007.\1\
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\1\ See 72 FR 10068 (Mar. 7, 2007).
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III. Public Comments and Discussion of Proposed Changes
The Department published an Advance Notice of Proposed Rulemaking
(``ANPRM'') on December 13, 2021, soliciting public comment on 19
questions regarding the revision and amendment of the regulations
implementing FARA and on the regulations as a whole.\2\ The Department
received comments from 29 commenters in response to the ANPRM, all of
which provided responses to one of the 19 specific questions on which
the Department solicited input.\3\ One commenter conceded it was not
addressing the substance of the ANPRM, but rather expressing its
disagreement with the position taken in a prior communication from the
FARA Unit. Nine commenters were lawyers or law firms that represent
registrants or potential registrants. Ten commenters were nonprofit
organizations that either are themselves, or represent members who are,
registrants or potential registrants. Another six commenters were
nonprofit organizations with an issue-based interest in FARA. Three
commenters submitted comments anonymously.
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\2\ 86 FR 70787.
\3\ One of these comments was submitted twice.
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The comments are summarized below as they relate to each of the 19
questions posed in the ANPRM, along with responses to the comments and
an explanation of the changes, if any, to existing regulations that the
Department proposes in light of the public comments.
A. Agency
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 U.S. Dep't of Just., FARA Frequently Asked Questions (Apr. 10,
2023), https://www.justice.gov/nsd-fara/frequently-asked-questions. 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?
Each commenter who took a position on this question favored
clarifying the Department's definition of ``agency'' by regulation.
However, opinions about how best to clarify the definition of
``agency'' were varied.
Six commenters favored incorporating into the proposed rule at
least some portion of the Department's guidance document entitled,
``The Scope of Agency Under FARA'' (``Scope of Agency'').\4\ The
Department wishes to clarify that it has issued sources of guidance on
the scope of agency, like this document and certain advisory opinions,
that may not be contained within the FAQs referenced in Question 1. One
commenter suggested incorporating facts in the Scope of Agency guidance
document into the regulatory definitions of ``order,'' ``request,''
``direction,'' and ``control.'' Other commenters proposed using the
guidance as a starting point but making clearer in the proposed rule
that a foreign principal must exert ``some level of power over the
agent and must have some sense of obligation to achieve the principal's
requests.'' One commenter recommended that ``the Department look to
other settings in which agencies have defined similar relationships in
order to provide detailed, practical guidance on this important
threshold question.'' The commenter noted that
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\4\ U.S. Dep't of Just., The Scope of Agency Under FARA (May
2020), https://www.justice.gov/media/1070276/dl?inline.
the Department of [the] Treasury has issued detailed regulations to
determine whether a foreign person ``controls'' an entity for
Committee on Foreign Investment in the
[[Page 42]]
United States (``CFIUS'') purposes, 31 CFR 800.208. Likewise, the
Office of the Director of National Intelligence (``ODNI'') has
provided a comprehensive list of factors it considers when assessing
``foreign ownership, control, or influence'' (``FOCI''), 32 CFR
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2004.34.
Another commenter stated that the Department ``should draw upon
preexisting legal schemas and limit the agency to contractual, common
law agency, and quid pro quo arrangements'' to allow ``the Department
and the regulated community to draw on extensive case law and guidance
defining the scope of quid pro quo deals under other Federal statutes,
while meeting the intent of FARA to require registration of persons
acting on behalf of foreign principals.''
Three commenters specifically recommended adopting the definition
of ``agency'' included in the Restatement (Third) of Agency. For
example, one commenter recommended that the Department prioritize
simplicity in its regulations by adopting the Restatement test for
agency, which the commenter interpreted to require action at the
control of the principal and the consent of both parties.
Another commenter suggested including illustrative examples in the
regulations and identified particular areas for clarification. The
commenter recommended that the Department explain under what
circumstances an intermediary relationship will qualify as a principal/
agent relationship under FARA, specifically agreeing with the ABA Task
Force recommendation that a principal/agent relationship should only
exist in intermediary relationships where ``a foreign principal exerts
some degree of supervision, direction, control, or provides a majority
of the financing for the activities in question rather than with
respect to other aspects of the intermediary's operations.''
Several nonprofit organizations, or those representing their
interests, suggested ways to exclude nonprofit entities from any
definition of agency under FARA. For example, one commenter urged the
Department to adopt a presumption that tax-exempt nonprofits are not
generally acting ``for or in the interest of a foreign principal when
conducting activities consistent with their missions'' and past
practice--even if those activities are funded in part by a foreign
principal.
Contrary to those recommendations, one commenter was opposed to
incorporating the factors identified in the Department's guidance
document, citing a concern that relying only on the listed factors
could excuse ``true agents'' from FARA's registration requirement.
Having considered the public comments, the Department is not
proposing to adopt the common-law definition of agency or to codify the
Scope of Agency guidance document in the FARA regulations at this time.
First, the recommendations for the Department to adopt the test for
common-law agency \5\ as the test for agency under FARA are
inconsistent with the statutory text and judicial interpretations of
the statute. As discussed below, courts have held that the scope of
agency under FARA is broader than the scope of agency under the common
law. The scope of agency under FARA involves a two-part inquiry that
considers both the relationship between the agent and the foreign
principal and the activities the agent performs in the principal's
interests. With regard to the relationship part of the inquiry, rather
than being focused on ``whether the agent can impose liability on his
principal,'' as with the common law definition, FARA is concerned with
``whether the relationship warrants registration by the agent to carry
out the informative purposes of the Act.'' Att'y Gen. of U.S. v. Irish
N. Aid Comm., 668 F.2d 159, 161 (2d Cir. 1982) (``INAC'') (``Control is
an appropriate criterion for a determination of common law agency
because the agent contemplated by the Restatement has the power to bind
his principal.''). Therefore, for example, whereas the common-law test
for agency requires the agent to be subject to the principal's control,
agency under FARA may encompass persons who act at the direction or
request of a foreign principal.\6\ This means that a person may not be
an ``agent'' under the Restatement (Third) of Agency but could
nonetheless be an ``agent of a foreign principal'' under FARA. See
INAC, 668 F.2d at 161 (``We agree that the agency relationship
sufficient to require registration need not . . . meet the standard of
the Restatement (Second) of Agency[.]''); see also RM Broad., LLC v.
U.S. Dep't of Just., 379 F. Supp. 3d 1256, 1262 (S.D. Fla. 2019) (``[A]
common-law agency relationship is unnecessary to satisfy FARA's
definition of `agent of a foreign principal.' ''). Indeed, if a person
engages in certain activities even only at the ``request'' of a foreign
principal, this may satisfy the two-part test to establish an agency
relationship under FARA. See Att'y Gen. of U.S. v. Irish N. Aid Comm.,
530 F. Supp. 241, 257 (S.D.N.Y. 1981), aff'd, 668 F.2d at 161 (noting
that the disjunctive use of ``or'' in the statute allows various means
of direction or control to satisfy ``agency'' under FARA).
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\5\ See Restatement (Third) Of Agency Sec. 1.01 cmt. c (2006)
(``As defined by the common law, the concept of agency posits a
consensual relationship in which one person, to one degree or
another or respect or another, acts as a representative of or
otherwise acts on behalf of another person with power to affect the
legal rights and duties of the other person. The person represented
has a right to control the actions of the agent.'').
\6\ See 22 U.S.C. 611(c)(1).
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Second, after significant consideration of the issue, the
Department believes that the non-exhaustive factors identified in the
guidance are not well suited to adaptation as a test in a regulation
intended to capture the full scope of the statute's broad concept of
agency. In contrast to the CFIUS and FOCI contexts, it would not be
feasible to codify the broad range of factors that may inform whether a
person qualifies as an agent of a foreign principal under FARA.
Instead, analyzing whether a registrant has an agency relationship with
a foreign principal is a fact-intensive exercise better suited to the
advisory-opinion process, where persons who are unclear as to the
applicability of the Act can seek and receive definitive guidance as to
whether they have a registration obligation. See 28 CFR 5.2 (setting
forth the advisory opinion process); U.S. Dep't of Just., FARA:
Advisory Opinions, https://www.justice.gov/nsd-fara/advisory-opinions
(collecting FARA Unit advisory opinions by topic).
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)?
Under the statute, political consultants who act within the United
States for or in the interests of the foreign principal must
register.\7\ The Act defines a political consultant broadly as ``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.'' \8\
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\7\ 22 U.S.C. 611(c)(1)(ii).
\8\ 22 U.S.C. 611(p).
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Of the eight commenters responding to this question, all were in
favor of limiting the definition of ``political consultant'' by
regulation. For instance, one commenter stated that
because the current definition of ``political consultant'' is so
wide-reaching, it is virtually certain that hundreds, if not
thousands, of individuals are currently in
[[Page 43]]
violation without ever realizing their registration obligations.
This puts those few individuals that do register at a disadvantage,
given the burden of registration and quarterly reporting.[\9\]
Clarifying that the definition of ``political consultant'' includes
only those who conduct political activities will level the playing
field and provide much-needed clarity as to the law's applicability.
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\9\ FARA imposes a semiannual, not quarterly, registration
requirement. See 22 U.S.C. 612(b).
Multiple commenters referenced legislative history that suggests
the term ``political consultant'' should be read narrowly. One such
commenter quoted the 1965 legislative history, S. Rep. No. 89-143, at 9
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(1965) (emphasis added by commenter):
The definition of the term ``political consultant'' would apply
to persons engaged in advising their foreign principals with respect
to political matters. However, a ``political consultant'' would not
be required to register as an agent unless he is engaged in
political activities, as defined, for his foreign principal. A
lawyer who advised his foreign client concerning the construction or
application of an existing statute or regulation would be a
``political consultant'' under the definition, but unless the
purpose of the advice was to effect a change in U.S. policy he would
not be engaged in ``political activities'' and would be exempt from
registering with the Department of Justice.
After reviewing the comments and upon further consideration, the
Department believes that this issue also is not well suited to the
issuance of a regulation. The narrow definition proposed by the
commenter would render the definition of ``political consultant''
redundant of the definition of ``political activities,'' and the
Department did not identify another potential definition consistent
with the statutory language. If a putative agent is unsure about
whether the agent's activities are registrable, the agent should
request an advisory opinion.
B. Exemptions
The Department posed questions about three specific statutory
exemptions and a general question soliciting comments on whether
changes to the FARA regulations should be made to address other
exemptions. The public comments on each are set forth below, along with
a discussion of the proposed changes to the regulations under
consideration.
1. Commercial Exemptions
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''?
(a) Commenters Generally Favored Clarification
Most commenters who answered this question favored new regulations
to clarify the application of 22 U.S.C. 613(d)(2), which provides an
exemption for ``other activities not serving predominantly a foreign
interest.'' \10\ The relevant current regulation provides that a person
engaged in political activities on behalf of a foreign corporation,
even if owned in whole or in part by a foreign government, will not be
serving predominantly a foreign interest where the political activities
are directly in furtherance of the bona fide commercial, industrial, or
financial operations of the foreign corporation, so long as the
political activities are not directed by a foreign government or
foreign political party and the political activities do not directly
promote the public or political interests of a foreign government or of
a foreign political party.\11\
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\10\ Multiple commenters questioned the way the Department posed
the question in the ANPRM, noting that the regulation is not limited
to state-owned enterprises. The Department agrees. The question was
intended to elicit suggestions for regulations addressing contexts
outside those involving state-owned enterprises.
\11\ 28 CFR 5.304(c).
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One commenter, in suggesting that the Department clarify the
regulation, characterized the opinion of multiple interested parties--
business, nonprofits, and law firms. The commenter is concerned that by
reading 28 CFR 5.304(c) standing alone, the regulated community is
under the misimpression that the only way to qualify for the exemption
in section 613(d)(2) is if the entity meets the ``high standard'' set
forth in the current regulation. The commenter believes this ``chills
activities that are plainly outside of FARA's intended goal of
disclosure for `agents of foreign governments and political parties,'
'' potentially requiring a ``privately held and controlled business''
to analyze, for example, whether its efforts to advance its own
commercial interests could directly promote a foreign government's
public or political interests if they ``simply coincide in even a
limited fashion'' with the foreign government's stated views.
The Department agrees that the regulation interpreting the
exemption at 22 U.S.C. 613(d)(2) needs revision. The Department has
grappled for years with how to apply the current regulation to a broad
range of complex scenarios, including the increasing use of state-owned
enterprises by other countries for geopolitical and strategic purposes;
foreign government funding of, and other influence on, think tanks and
non-governmental organizations; the consulting work by former, high-
ranking U.S. Government officials on behalf of foreign state allies and
adversaries; and U.S. activities of sovereign wealth funds. The
Department determined that it needs a more comprehensive regulation
that better addresses the variegated relationships and conduct the
Department sees in its investigations, and that better guides
practitioners on how the Department analyzes this exemption.
The Department considered various approaches to revising the
regulation, including one proposed by commenters.
(b) Intentionality Standard Proposal
Multiple commenters suggested that the Department adopt a version
of an intentionality standard. Specifically, one commenter suggested
the Department ``include an `intent' or `purpose' test'' to apply the
provisions of section 613(d)(2). The commenter recommended that to the
extent ``activities are not conducted with an intent to directly
promote any public or political interests of any foreign government,''
the section 613(d)(2) exemption should remain available. In applying
this approach, the commenter recommended a regulation that clearly
provides that ``mere incidental or unintentional benefit to a foreign
state'' does not require registration. Further, the commenter suggested
that the Department make clear in a regulation that registration is not
required ``where an agent acting on behalf of a principal has no
contact with any foreign state (or political party) actors,'' and there
is no conveying of any direction or request from any foreign state.
The Department declines to adopt this approach for two reasons.
First, such a test is not consistent with the statutory text of the
exemption, which makes no express reference to intent. Instead, the
exemption requires that the activities not serve (whether intentionally
or not) ``predominantly a foreign interest.'' \12\ The intent or the
purpose of the activities is relevant only to the extent that it could
shed light on whether the activities serve predominantly a foreign
interest. As set forth below, the approach the Department proposes is
more consistent with the statutory language and is better suited to the
task of ascertaining whether the activities serve predominantly a
foreign interest.
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\12\ 22 U.S.C. 613(d)(2).
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[[Page 44]]
Second, adopting exclusively a subjective test to determine who may
fall within the exemption would also frustrate the Department's ability
to enforce FARA in accordance with its purpose. The Department would
have to rebut a person's subjective claim that the ``purpose'' or the
``intent'' of the political activities had not been to benefit the
public or political interests of the foreign government or foreign
political party. Even if the Department were to adopt a test focused on
the outward manifestations of a person's intent, rebutting such
evidence would pose similar practical challenges for the Department's
enforcement capacity. The Department declines to adopt a test that
would so constrain its enforcement of the Act.
(c) Three Principal Proposed Changes to the 22 U.S.C. 613(d)(2)
Exemption
Other than the purpose or intent test, commenters did not offer any
comprehensive test that would apply in all circumstances. Nor does the
Department think one is feasible given the fact-dependent nature of the
``predominant interest'' inquiry.\13\ Likewise, commenters proposed a
series of tests, each of which would apply in different circumstances
such as where state-owned enterprises are or are not at issue, where
commercial and non-commercial interests are present, and the like. The
Department concluded that this approach would become too unwieldy,
given the myriad scenarios to which the exemption may apply.
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\13\ Cf. H.R. Rep. No. 89-1470, at 10 (1966) (``Applicability of
the exemption will have to be judged on the facts of each case . . .
. It is expected that the Department of Justice will, by regulation,
establish criteria to provide guidance to agents involved in
commercial activities which are of direct or indirect interest to a
foreign government.''); S. Rep. No. 89-143, at 12 (``[I]t may prove
difficult to decide whether the [section 3(d)(2) exemption]
appl[ies] in a given situation. Clearly this is not an area where
the law can establish strict criteria.'').
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Rather, based on all the comments received, as well as the
Department's decades of experience administering and enforcing the
613(d)(2) exemption, the Department proposes three principal changes to
the relevant regulation.
(1) The first change would make clear that this exemption applies
to commercial and non-commercial entities alike, so long as the
predominant interest being served is not foreign. This change is
consistent with the statutory language, which draws no distinction
between commercial and noncommercial entities, and addresses the
concerns from commenters referenced above (and below in response to
Question 5) about the scope of the exemption.
(2) The second change would create a set of four exclusions to the
exemption. The exclusions focus only on the relationship (if any)
between the activities and a foreign government or foreign political
party. If there is no such relationship, then the exclusions will not
apply and the exemption will remain available. In each instance, the
facts would establish whether the predominant interest served by the
activities is foreign. Under the proposal, an agent would be
categorically precluded from obtaining the exemption if (1) the intent
or purpose of the activities is to benefit the political or public
interests of the foreign government or political party; (2) a foreign
government or political party influences the activities; (3) the
principal beneficiary is a foreign government or political party; or
(4) the activities are undertaken on behalf of an entity that is
directed or supervised by a foreign government or political party (such
as a state-owned enterprise) and promote the political or public
interests of that foreign government or political party.
The sources for these proposed exclusions to the 613(d)(2)
exemption are the statute, the regulations, relevant legislative
history, and the Department's experience over the decades analyzing and
applying the exemption.\14\
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\14\ The Department's FARA website contains, in redacted form,
over 40 advisory opinions construing the section 613(d)(2)
exemption. In addition, the Frequently Asked Questions page of the
FARA website contains guidance on ``Exemptions,'' including but not
limited to the section 613(d)(2) exemption. U.S. Dep't of Just.,
FARA Frequently Asked Questions (Apr. 10, 2023), https://www.justice.gov/nsd-fara/frequently-asked-questions.
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(A) The first proposed exclusion would cover cases in which there
is evidence that the activities are intended to promote or benefit the
political or public interests of a foreign government or foreign
political party. In such cases, FARA registration should be required.
There may be multiple motivations in any given case, but where there is
evidence that an agent is motivated specifically to advance the
political or public interests of the foreign government or foreign
political party, there should exist at least a rebuttable presumption
that the foreign interest predominates. In addition, because it may be
difficult if not impossible to prove definitively which motivation is
primary, the existence of an intent or purpose to advance the foreign
interest should be determinative.
(B) The second proposed exclusion would cover cases where a foreign
government or foreign political party itself is influencing the
activities (as opposed to collateral activities outside the scope of
FARA). The Department proposes that it should infer that influence is
being exercised deliberately to benefit the foreign government or
foreign political party. As with the first exclusion, the balance of
the benefit accruing to domestic and foreign interests may be difficult
to identify with certainty, but the existence of influence by a foreign
government or foreign political party justifies withholding the
exemption. Such influence may be exerted directly or through an
intermediary; as a result, not every person relevant to the registrable
conduct may appreciate that the influence originated with the foreign
government or foreign political party. Although directing, controlling,
owning, financing, and subsidizing are all ways a foreign government or
political party may exert influence over the domestic person or the
person's activities, and such influence may be exerted ``directly or
indirectly'' (i.e., through an intermediary),\15\ such examples do not
encompass the full spectrum of ways a foreign government or foreign
political party may exert its influence. This proposed exclusion would
allow the Department flexibility to determine if such influence is
present in any form; if so, the exemption would not be available.
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\15\ See 22 U.S.C. 611(c)(1).
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(C) The third proposed exclusion would cover cases where the
principal beneficiary of the activities is a foreign government or
foreign political party. The Department looked to the legislative
history relating to the section 613(d)(2) exemption as well as, by
analogy, a current regulation relating to the LDA exemption. In his
remarks about this exemption, Senator Fulbright--who had introduced
identical legislation in the previous Congress--stated that the bill
``is not designed or intended to impair the normal contacts of company
officials with government agencies and the Congress, even if the
contacts would constitute `political activities' as defined in the
bill, unless the principal beneficiary of the activities is the foreign
subsidiary or parent.'' 111 Cong. Rec. 6985 (1965) (statement of Sen.
Fulbright). Further support for adopting this exclusion comes from the
current regulatory test for exempting persons from the LDA, under which
circumstantial evidence that the foreign government or foreign
political party is in fact directing or controlling the
[[Page 45]]
activities prevents persons from using the exemption.\16\
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\16\ See 28 CFR 5.307.
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(D) The fourth and final proposed exclusion covers cases where a
person's activities are directly or indirectly supervised, directed,
controlled, or financed in whole or in substantial part by a government
of a foreign country or a foreign political party (such as when a
state-owned enterprise is involved) and promote that foreign country's
or political party's public or political interests. To describe the
second element of the exclusion, the Department proposes retaining
language from the current regulation that excludes from the exemption
activities that promote the public or political interests of a foreign
government or foreign political party,\17\ though the Department
proposes removing the word ``directly'' before ``promote'' from the
formulation, for the reasons discussed below in response to Question 4.
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\17\ See 28 CFR 5.304(b), (c).
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(3) The third proposed change would apply when these exclusions do
not preclude the exemption. In such cases, the Department has
identified a non-exhaustive list of factors to determine whether, given
the totality of the circumstances, the predominant interest being
served is domestic rather than foreign, such that the exemption should
apply. These non-exhaustive factors include, but are not limited to:
(1) whether the public and relevant government officials already know
about the relationship between the agent and the foreign principal; (2)
whether the commercial activities further the commercial interests of a
foreign commercial entity more than those of a domestic commercial
entity; (3) the degree of influence (including through financing) that
foreign sources have over domestic non-commercial entities, such as
nonprofits; (4) whether the activities concern U.S. laws and policies
applicable to domestic or foreign interests; and (5) the extent to
which any foreign principal influences the activities. While in many
instances several factors may prove significant, in other instances a
single factor may be dispositive; further, depending on the
circumstances, the factors may overlap to various degrees (and
sometimes completely). The Department expects that advisory opinions
and enforcement actions will clarify how these factors apply to a range
of activities.
As the discussion below explains, the sources for these factors are
the current statute, the current regulations, relevant legislative
history, and the Department's experience over the decades analyzing and
applying the section 613(d)(2) exemption.
(1) The first proposed factor is whether the public and relevant
government officials already know about the relationship between the
agent and the foreign principal. The Department derived this factor
from former section 611(q) of the Act,\18\ which required for the
section 613(d)(2) exemption to apply that the ``identity of [the]
foreign person is disclosed to the agency or official of the United
States with whom such activities are conducted.'' Foreign Agents
Registration Act of 1938, Amendments, Public Law 89-486, sec. 1(5), 80
Stat. 244, 245 (1966). The Department proposes carrying that
transparency concept forward by considering it as a non-exclusive
factor in determining whether registration is required.
---------------------------------------------------------------------------
\18\ 22 U.S.C. 611(q) was repealed by the Lobbying Disclosure
Act of 1995, which created a public registry of lobbyists for
domestic interests.
---------------------------------------------------------------------------
(2) The second proposed factor is whether the activities further
the commercial interests of a foreign commercial entity more than those
of a domestic commercial entity. The Department drew this factor from
the current regulation as an initial matter, which considers whose
commercial interests are furthered. See 28 CFR 5.304(c). Both former
section 611(q) and other legislative history reflect the principle that
a regulated party ought not lose the exemption simply because its
activities further the interests of both the domestic enterprise as
well as a related foreign enterprise, so long as the domestic
enterprise's interests predominate. See Public Law 89-486, sec. 1(5),
80 Stat. at 245; H.R. Rep. No. 89-1470, at 11 (1966). Further, in the
Department's experience, whose commercial interests are furthered most
by the activities is a useful metric to consider when determining the
predominant interest.
(3) The third proposed factor is the amount of influence, including
through financing, that foreign sources (whether governmental or
private) have over the activities of domestic non-commercial entities.
Financing is only one way a foreign principal may exert influence over
a domestic entity and its activities, however.\19\ Further, in the
Department's experience, assessing the extent of a foreign source's
influence over domestic non-commercial entities' activities, whatever
form it may take, is a useful metric to consider when determining the
predominant interest being served.
---------------------------------------------------------------------------
\19\ See 22 U.S.C. 611(c)(1).
---------------------------------------------------------------------------
(4) The fourth proposed factor is whether the activities concern
U.S. laws and policies that are more relevant to domestic interests or
to foreign interests. The Department identified this factor by looking
to legislative history. As the Senate Report noted, ``where the foreign
subsidiary of a U.S. parent is concerned with U.S. legislation
facilitating investment or expansion of production abroad[,] the locus
of the interest will, also, as a general rule, be predominantly (even
if not ultimately) foreign.'' S. Rep. No. 88-875, at 12 (1964). In this
way, the Department proposes considering whether the activities relate
to U.S. laws or policies that are principally of interest or would
principally benefit the domestic entity or the foreign entity to
determine where the locus or the predominant interest lies.
(5) The fifth proposed factor is the extent to which any foreign
principal (as defined in the Act, and not limited to a foreign
government or a foreign political party in this context) influences the
activities. Here, put simply, the greater the foreign influence
involved, the greater the likelihood that this factor will favor a
finding that the predominant interests served by the activities are
foreign.
The Department proposes the foregoing as a non-exhaustive set of
factors because the ``[a]pplicability of the exemption will have to be
judged on the facts of each case.'' H.R. Rep. No. 89-1470, at 10. This
means there may be other factors that come to light while administering
and enforcing this exemption, and the applicability of the exemption
must be evaluated in light of the totality of the circumstances, taking
all relevant factors into account.
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?
This question elicited responses from eight commenters, all of whom
were in favor of clarifying the language referred to in the question.
Commenters noted that guidance surrounding the ``directly promote''
standard was not clear and that revised regulations should make more
explicit how the Department interprets that phrase. For example, one
commenter indicated that the current regulatory language is unduly
vague and
[[Page 46]]
subjective on its face and that the Department's interpretation of the
term ``directly promote'' in various advisory opinions fails to provide
the regulated community with a clear and consistent standard to
facilitate public understanding and compliance.
The Department agrees that the use of the word ``directly'' in
conjunction with ``promotes'' has led to many questions about the
distinction between the direct and indirect promotion of a foreign
government's or foreign political party's interests. The Department
proposes to address this issue by deleting the word ``directly'' from
the regulations relating to the exemptions at 22 U.S.C. 613(d)(1) and
(d)(2).
The exemption at 22 U.S.C. 613(d)(1) creates a test for determining
whether commercial activities are ``private'' when state-owned
enterprises are at issue. Besides eliminating the ambiguity these
commenters referenced, deleting the word ``directly'' is consistent
with the legislative history. For example, the House Report on FARA
recognized that a foreign government's otherwise private or commercial
activities would not be exempt if ``the foreign agent promotes the
political and public interests of a foreign governmental principal.''
H.R. Rep. No. 89-1470, at 10 (emphasis added); see also S. Rep. No. 89-
143, at 11 (same). The report nowhere distinguishes between direct and
indirect promotion.
Accordingly, the Department proposes to revise the regulation's
language to exclude from the exemption activities that promote--rather
than directly promote--the public or political interests of the foreign
government or political party.
The Department also proposes to delete the modifier ``directly''
from the regulation applicable to the exemption at 22 U.S.C. 613(d)(2),
which covers activities not predominantly serving a foreign interest.
Some commenters expressed concern that the ``directly promote'' test--
which forms a key part of the section 613(d)(2) regulation--may
require, as one commenter noted, a ``privately held and controlled
business'' to analyze ``whether its efforts to advance its own
commercial interests could `directly promote . . . public or political
interests' '' of a foreign government or foreign political party. By
deleting the word ``directly'' from the proposed rule, the Department
has eliminated this concern with respect to such privately held
commercial enterprises unless the intent or purpose of their activities
is to promote foreign government or foreign political party interests,
or a foreign government or foreign political party is the principal
beneficiary of the activities. Rather, under the Department's proposed
rule, only activities on behalf of an entity that is directed or
supervised by a foreign government or political party, such as a state-
owned enterprise, that promote the political or public interests of a
foreign government or political party would render the agent subject to
the exclusion. As with the section 613(d)(1) exemption, removal of the
modifier ``directly'' will remove the ambiguity present in the current
regulation.
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)?
Commenters from the nonprofit community suggested revising the
regulations implementing section 613(d)(1) and (2) to explicitly
include nonprofit activity. For example, one commenter suggested that
the Department make clear that the section 613(d)(2) exemption applies
equally to charities and commercial organizations. Another commented
that the current regulation fails to make clear how a nonprofit
organization without trade or commercial operations, as those terms are
commonly understood, could benefit from the section 613(d)(2)
exemption.
In another instance one commenter stated that the regulation should
clarify that the section 613(d)(2) exemption applies in the context of
a tax-exempt organization conducting activities in furtherance of its
bona fide purpose.
The Department agrees that the proposed rule should make clear that
the section 613(d)(2) exemption applies to nonprofit and commercial
entities alike, so long as the activities do not serve predominantly
foreign interests. The proposed regulatory text at 28 CFR 5.304(c)
reflects this change.
2. Exemption for Religious, Scholastic, or Scientific Pursuits
Question 6: Should the Department issue additional or clarified
regulations regarding this [bona fide religious, scholastic, academic
and scientific pursuits or of the fine arts] exemption to clarify the
circumstances in which this exemption applies? If so, how should those
additional regulations clarify the scope of the exemption?
The seven commenters who offered a view on the section 613(e)
exemption primarily wrote to express the view that the exemption should
cover a broader scope of activity. One commenter urged the Department
to narrow the definition of ``political activities'' to ensure that
term does not capture legitimate and reasonable scholastic, academic,
and scientific pursuits.
One commenter suggested that the regulation exempt all
architecture, sculpture, painting, music, performing arts, literature,
and fictional films. Furthermore, the commenter suggested broadening
the applicability of the exemption to include those who engage in
political speech, stating that doing so would provide more breathing
room to civil society, and would not harm the government's core
interest because of parallel protections found in 18 U.S.C. 951.
One commenter suggested that new regulations were not necessary,
but that the Department should issue more detailed non-binding
interpretive guidance that focuses this exemption on the direction or
influence of a foreign government or political party.
The Department does not believe new regulations are necessary to
address this exemption. The scope of the exemption has not been a
frequently raised question during the advisory-opinion process, as
demonstrated by the fact that there have been only five opinions issued
on this topic in the last seven years. Given the often context-
dependent nature of the inquiry, the Department agrees that it must
exercise care and provide reasonable guidance, including through the
advisory opinions process, concerning religious, scholastic, academic,
and scientific pursuits, and the fine arts. FARA seeks to provide
transparency for the U.S. public as to the activities of foreign agents
in the United States so that the public can better assess messaging in
light of the speaker's status as a foreign agent. The Department
encourages the invocation of this exemption for bona fide religious,
scholastic, academic and scientific pursuits, or fine arts activity,
and encourages parties who are unclear about application of the
exemption to their specific circumstances to use the advisory-opinion
process pursuant to 28 CFR 5.2.
3. Exemption for Persons Qualified To Practice Law
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?
Multiple law firms or commenters representing the interests of
attorneys submitted comments suggesting that the Department clarify the
scope of 28 CFR 5.306(a), which interprets the
[[Page 47]]
exemption found at 22 U.S.C. 613(g) for persons qualified to practice
law. One respondent commented that the current regulations would appear
to require registration for statements to the media that could be made
in substantially equivalent form in court without triggering a
registration requirement.
Another commenter suggested that the Department identify the types
of activities it considers as occurring ``in the course'' of legal
proceedings, proposing that public relations, jury selection, media and
social media efforts, and other out-of-court proceedings ancillary to
in-court representation would not make a lawyer ineligible for the
exemption.
One commenter suggested that it was unclear whether, under the
current regulations, requesting an advisory opinion from the Department
would qualify for the section 613(g) exemption. Under 22 U.S.C.
611(c)(1), however, an attorney seeking an advisory opinion from the
FARA Unit about the applicability of the Act to the attorney's client
is not in and of itself an act that requires registration under FARA.
One commenter suggested that the changes referenced in the question
were unnecessary, however, and that such a change could be
counterproductive in the long term because perspectives could shift
over time regarding what kinds of activities by lawyers are within the
bounds of normal legal representation.
The Department agrees with the majority of commenters who felt that
it should clarify Sec. 5.306(a). As revised, the proposed rule would
clarify how the exemption applies in light of the realities of modern
legal practice. First, proposed Sec. 5.306(a) rephrases for clarity
the language of the statutory exemption for persons qualified to
practice law who are engaged in legal representation. Second, and in
line with one commenter's suggestion, proposed Sec. 5.306(b) would
define the statutory term ``legal representation,'' clarifying that it
includes activities commonly considered part of client representation
in the underlying proceeding so long as they do not constitute
political activities; for example, making statements outside of the
courtroom or agency hearing room could qualify. The proposed rule is
therefore consistent with current guidance in the Frequently Asked
Questions section of the Department's FARA website. This guidance notes
that the legal representation exemption ``once triggered, may include
an attorney's activities outside [judicial or administrative]
proceedings so long as those activities do not go beyond the bounds of
normal legal representation of a client within the scope of that
matter.'' U.S. Dep't of Just., FARA: Frequently Asked Questions (April
10, 2023), https://www.justice.gov/nsd-fara/frequently-asked-questions.
Finally, proposed Sec. 5.306(c) would retain the requirement from the
existing regulation that the attorney must disclose that the attorney's
representation is on behalf of a specific foreign principal to the
court or agency decision maker regardless of whether any court or
agency procedures require it.
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)?
Two commenters commented on the applicability of FARA to non-
attorneys. One suggested that non-attorney legal professionals should
be eligible for the section 613(g) exemption. That commenter explained
that it excludes paralegals and other non-attorney professionals from
working on some matters based on a view that otherwise the non-attorney
would need to register under FARA. Another commenter opined that
registration appears to, but should not be, required for non-attorney
researchers who had neither contact with the foreign client nor any
role in public outreach on behalf of the foreign client.
The Department does not believe a rule is necessary to address
whether non-attorney professionals and other legal support staff
engaged in activities supervised by an attorney for or in the interests
of a foreign principal are required to register under FARA. To date, no
request for an advisory opinion has sought guidance on this issue, and
staff supporting exempt legal representation do not commonly register
under FARA. The Department also notes that questions regarding
activities that are registrable under the Act turn to a significant
degree on the nature of the activities themselves rather than the job
title(s) of the person(s) engaging in them. While the Department
believes that non-attorney legal professionals may fall within an
attorney's section 613(g) exemption when providing support services for
the exempt work, specific questions about the applicability of the
statute to particular facts in such scenarios may be addressed through
a request for an advisory opinion rather than formal rulemaking.
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?
Many commenters who responded to Question 9 requested that the
Department clarify the 22 U.S.C. 613(h) exemption from registration
under FARA for agents properly registered under the LDA. For example,
one commenter stated that the Department had inappropriately narrowed
the section 613(h) exemption through its guidance and advisory
opinions.
Another commenter wrote to urge the Department to clarify the scope
of the section 613(h) exemption. That was especially urgent, the
commenter claimed, because of a recent Advisory Opinion noting that the
section 613(h) exemption might not apply where a foreign government or
political party is one of multiple principal beneficiaries of lobbying
activities, which the commenter claimed had engendered significant
confusion. The Department acknowledges the confusion to which the
commenters refer, and the footnote in the Advisory Opinion to which the
commenter referred does not reflect the present enforcement intentions
of the Department.\20\ The governing standard remains as it is written
in the current regulation: ``In no case where a foreign government or
foreign political party is the principal beneficiary will the exemption
under 3(h) be recognized.'' \21\
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\20\ See 28 CFR 5.2(h) (providing that advisory opinions reflect
the ``present enforcement intention'' of the Department).
\21\ 28 CFR 5.307.
---------------------------------------------------------------------------
One commenter suggested that the Department sharpen its
interpretation of the LDA exemption by eliminating the ``principal
beneficiary'' standard from its regulations and replacing it with a
purpose-based test. The Department declines to propose this approach
for the section 613(h) exemption for the same reasons the Department
declined to propose it for the section 613(d)(2) exemption. A purpose-
based test would shift the burden to a great extent to the Department
to ascertain the purpose of certain activity, as viewed from the
outside, when it would be the agent who would possess critical
probative evidence: the subjective knowledge as to the purpose of its
activities. Such a test would frustrate FARA enforcement and undercut
transparency under the Act. Rather, the Department will continue to
deny the exemption in 613(h) in any situation where a foreign
government or foreign political party is the principal beneficiary of
the lobbying activity. This language is a good indicator of direction
or control by a foreign government or foreign political party. In other
words, in instances where a foreign government
[[Page 48]]
or political party is the principal beneficiary of the activities, that
principal benefit provides circumstantial evidence supporting the fact
that the foreign government or foreign political party is likely, in
fact, requesting, ordering, directing, or otherwise controlling the
activities.
Additionally, commenters suggested changes to one other exemption
and an exclusion under the Act. First, one commenter representing the
interests of nonprofit organizations suggested that the humanitarian
exemption in 22 U.S.C. 613(d)(3) should be read broadly to include not
just soliciting or collecting funds for medical aid, food, or clothing,
but a broader array of charitable activities. The statutory language,
however, is clear that the exemption applies to ``the soliciting or
collecting of funds and contributions within the United States to be
used only for medical aid and assistance, or for food and clothing to
relieve human suffering[.]'' \22\ The Department cannot expand the
scope of a statutory exemption through regulation. See, e.g., Nat. Res.
Def. Council, Inc. v. EPA, 25 F.3d 1063, 1070 (D.C. Cir. 1994).
---------------------------------------------------------------------------
\22\ 22 U.S.C. 613(d)(3) (emphasis added).
---------------------------------------------------------------------------
A second commenter suggested that the Department clarify the
exception at 22 U.S.C. 611(d). Under that provision, certain news
organizations are excluded from the definition of ``agent of a foreign
principal'' when they are engaged in news or journalistic activities
including certain activities related to advertising and subscriptions,
as long as they are at least 80 percent beneficially owned by U.S.
citizens, their directors and officers are U.S. citizens, and they are
not influenced in certain ways by a foreign principal or by an agent of
a foreign principal. The commenter suggested clarifying that this
provision applies to online media platforms that provide news or press
services.
The Department agrees with the commenter that there is no sound
statutory or policy reason to distinguish between online and
traditional print media with respect to this exclusion, and the
statutory language does not in fact compel any such distinction. While
it is true that an online-only media entity cannot qualify as a
publication having mail privileges with the U.S. Postal Service and so
cannot rely on that particular criterion in the exclusion, such a media
entity could still qualify for the exclusion so long as it otherwise
complies with the remaining criteria set forth in section 611(d).\23\
Given the plain language of the statute and the generally
straightforward interpretation, the Department does not believe that
there is any need to clarify section 611(d) by regulation.
---------------------------------------------------------------------------
\23\ See, e.g., Mar. 14, 2023 Advisory Opinion at 3-4, https://www.justice.gov/nsd-fara/media/1355041/dl?inline (finding an online
platform to be a news or press service or association within the
section 611(d) exclusion).
---------------------------------------------------------------------------
C. Inquiries Concerning Application of the Act
The Department asked three questions about the Rule 2 advisory
opinion process.
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?
Those commenters who answered Question 10 were generally opposed to
lengthening the 30-day time frame provided in the current iteration of
28 CFR 5.2(i). That said, one commenter offered that a 45- or 60-day
response deadline, while problematic for time-sensitive business
decisions, would be more realistic if the FARA Unit consistently could
issue advisory opinions within those time frames. After considering
these comments, the Department is not proposing changes to the current
30-day time frame to respond to advisory opinion requests. The
Department notes, however, that 28 CFR 5.2(i) makes clear that the 30-
day time frame is tolled for any period when the Department awaits any
materials necessary to provide its current enforcement intention.
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?
Commenters were generally in favor of the Department publishing the
corresponding request with Rule 2 advisory opinions, with six
commenters responding that publishing the request would be beneficial.
Specifically, one commenter agreed that publishing the corresponding
request would provide context helpful for the regulated community.
Another responded that releasing the redacted versions of opinion
requests would greatly assist the regulated community, but noted the
importance of sufficient redactions to protect any trade secrets or
similar confidences. On the other hand, one commenter found the current
process--in which the Department summarizes the request in the text of
the Advisory Opinion--to provide sufficient context without publication
of the corresponding request.
After considering comments and reevaluating our current process,
the Department is not proposing the publication of incoming requests
for advisory opinions. The Department believes doing so would not
provide enough benefit to account for the possible drawbacks of the
proposed change. Anonymizing and publishing incoming requests would
take significant staff hours and would delay the publication online of
the redacted advisory opinions as FARA Unit staff consulted with the
requester about the proposed redactions. Also, after redaction, this
proposed practice is unlikely to provide the regulated community with
significantly more material information than the Department's current
practice of summarizing all the relevant portions of the incoming
request in the published advisory opinion. Finally, the Department is
concerned that the possibility of a request being published, with the
attendant risk of inadvertent release of confidential business
information, could chill interested parties from seeking opinions and
thus frustrate the Department's goal of obtaining voluntary compliance
with FARA.
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?
One commenter suggested that the Department set a specific timeline
for posting an advisory opinion after it is issued to a requestor, and
that the Department post more conspicuous notices on its website to
alert interested parties when new opinions are published online.
The Department already announces publication of new advisory
opinions through an announcement on FARA.gov as well as via social
media alert, so a new regulation to that effect is unnecessary. And,
while the Department believes that a regulation setting a schedule for
publishing Rule 2 opinions is also unwarranted because they are already
posted in a sequence that appropriately balances expedition with
flexibility to accommodate administrative and other particular
concerns, the Department is considering setting such a schedule as a
matter of internal policy.
Multiple commenters also suggested that the Department should make
it easier to search the published advisory opinions for specific text
or topics or to access data uploaded to the FARA
[[Page 49]]
Unit's website. Again, while the Department does not believe a
regulation is necessary to effect this change, it will consider this
proposal as part of its efforts to modernize the way such data are made
available to the public.
Apart from the commenters' proposals, the Department is also
proposing amending its regulations regarding the issuance of advisory
opinions to update the method for requesting an advisory opinion,
clarify language related to requests for advisory opinions, and expand
the information required to be provided with each request for an
advisory opinion. The proposed rule would update and streamline the
process by requiring that a portal on the FARA website be used for
requesting an advisory opinion. In light of some requesters' confusion
on this point, the proposed rule would also clarify the current
language to emphasize that the Department will not respond to any
request for its present enforcement intention that is not in compliance
with the regulations. To provide the Department with the context
necessary to assess the request, the proposed rule would also expand
the information to be provided with each request to include, where
applicable, a list of partners, officers, or directors or persons
performing the functions of an officer or director, and relevant and
material information regarding current or past affiliation(s) with a
foreign government or foreign political party. Further, to clarify the
required elements of a request for an advisory opinion, the Department
is proposing dividing the subparagraphs in the regulation by
transferring to its own subparagraph the requirement that all
submissions be certified to be true, correct, and complete.
D. Labeling Informational Materials
In the ANPRM, the Department posed a series of questions about
defining the term ``informational materials'' as that term appears in
22 U.S.C. 614, labeling informational materials in various contexts,
and changing the content of the conspicuous statement on those
materials.
Question 13: Should the Department define by regulation what
constitutes ``informational materials''? If so, how should it define
the term?
Recognizing the broad scope of ``informational materials'' in 22
U.S.C. 614, most commenters responded with only minor suggestions for
regulations. For example, one commenter opined that there is no
significant confusion about the meaning of ``informational materials''
at present and encouraged the Department to propose a broad definition
if it chooses to propose one at all. Two commenters specifically
referenced the need for the Department to address electronic forms of
information, including websites, instant messaging, and social media
content, especially given the statute's use of the term ``prints,''
which would seem to exclude electronic materials. Another commenter
suggested that the Department should generally provide more guidance as
to the types of materials requiring labelling and filing with the
Department, and specifically suggested including details as to the
content and formats falling within the definition, as well as
illustrative examples. Finally, one commenter suggested adopting a
definition that, consistent with FARA's original goal of targeting
propaganda, focuses on whether the communication is reasonably adapted
or intended to influence the recipient or the public with respect to
U.S. policy or the interests or foreign relations of a foreign
government or political party.
The Department appreciates commenters' suggestions on how best to
define ``informational materials,'' and proposes a new regulation at
Sec. 5.100(g) that would tie the definition to the statutory
definition of political activities. ``Political activities'' consists
of certain efforts to influence the U.S. public or Government regarding
U.S. policies or the interests of foreign governments or political
parties.\24\ The proposed definition of ``informational materials''
would also make clear that materials can qualify as informational
materials regardless of how they are transmitted. Other proposed
regulations about how to label informational materials distributed
through a wide array of media also make that point clear. The
Department does not propose a regulation that would exhaustively list
the myriad ways informational materials may be transmitted in the
modern age, however, because such a list would become outdated through
technological innovation. Further, in agreement with some commenters,
Sec. 5.401(h) of the proposed rule would confirm that the term
``political propaganda,'' where still found in the Act, is defined to
mean the same thing as ``informational materials.''
---------------------------------------------------------------------------
\24\ 22 U.S.C. 611(o).
---------------------------------------------------------------------------
Finally, the proposed rule would also clarify the term ``request''
in 22 U.S.C. 614(e). Section 614(e) generally requires that information
furnished to an agency or official of the Government in the interest of
a foreign principal contain a statement that the person is registered
under the statute as an agent of that foreign principal. The proposed
rule specifies that all communications related to an agent's request
regarding information or advice, such as communications to schedule a
meeting to discuss the request, are covered by section 614(e). In this
way, these ``scheduling'' communications would also require a
conspicuous statement about the agent's relationship to the foreign
principal.
Question 14: What changes, if any, should the Department make to
the current regulation, 28 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?
Many commenters suggested that the Department issue a regulation
requiring conspicuous statements on social and electronic media, but
respondents were split on the specific instances where such statements
were necessary and on ideas for implementation. For instance, one
respondent recommended adopting a flexible, standards-based approach
applicable across all media platforms, and providing illustrative
examples to assist regulated parties. However, that respondent and
several others recommended against requiring a conspicuous statement on
every digital communication because doing so would preclude the use of
certain digital media platforms with limited space for each
communication.
More than one commenter recommended looking to practices of other
agencies with similar labeling requirements, including the disclaimer
requirements for the digital context adopted by the Federal Election
Commission and the Federal Trade Commission.
One commenter specifically suggested adopting a two-pronged
approach, in which firms distributing digital communications on behalf
of a foreign principal would be required to include a conspicuous
statement on the account or profile distributing the propaganda, like
the one suggested in a recent legislative initiative by Sens. Shaheen
and Young, and would also be required to place a marker like a
checkmark on each individual communication indicating that it is being
distributed on behalf of a foreign principal. Another commenter
suggested that the Department should adopt different requirements for
different media. For streaming media like audio and video, the
conspicuous statement would need to be included at the beginning and
end
[[Page 50]]
of every communication. For social media accounts, the conspicuous
statement would need to appear on the user's profile and on all posts.
For longer form digital media, the conspicuous statements should be
included in any biographical information about the writer and at the
beginning and end of each post.
In response to the commenters' suggestions, the Department
considered the practices of other agencies with respect to social media
labeling requirements. While it has incorporated best practices from
those agencies' various guidance documents into its proposed rule, the
Department did not find any regulations that were appropriate to import
wholesale into the FARA context. Instead, in light of the comments
received and based on the Department's own analysis of labeling
concerns, Sec. 5.401 of the proposed rule would provide a standard
labeling requirement for all informational materials that is subject to
other requirements in specifically enumerated contexts. Under Sec.
5.401(b) of the proposed rule providing the generally applicable
default requirements, the standard label must satisfy the requirements
of the conspicuous statement, including a new requirement that it
contain the country (or state, territory, or principality) in which the
foreign principal is located, and be set forth at the beginning of the
materials in the same language as the rest of the materials and in a
font and color that are easy to read.
The proposed rule then sets out other contexts that require a
different labelling approach. First, as one commenter discussed, for
materials that contain the author's byline or biographical information,
or the identifying information of a digital author or account, there is
a need for transparency through a conspicuous statement in that
location. Second, with television and broadcasts (including internet-
based audio/visual transmission or television), the Department proposes
that different rules need to apply, as set forth in response to
Question 15 below. Third, the Department also proposes that still or
motion picture films also require different rules to enable the public
to see and understand the conspicuous statement in those formats.
Fourth, the Department is proposing different requirements to apply
when the informational materials are posted on internet websites or
platforms. The proposed rule varies depending on whether the registrant
has administrative rights (and thus an ability to post conspicuous
statements in different parts of the website or platform). In either
case, however, the proposed rule would account for situations where the
internet platform or website does not provide sufficient space for the
full conspicuous statement by requiring that the internet post include
an embedded image of the conspicuous statement instead.
Question 15: Should the Department amend the current regulation, 28
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?
Two commenters were in favor of amending the regulations as
described in Question 15. One commenter opined that additional
regulations are unnecessary because existing regulations adequately
inform recipients about how to find information about the foreign
principal.
The Department considered these views and its own experience
administering and enforcing the labeling provisions in this context
when drafting the proposed rule. Proposed 28 CFR 5.401(d) would add a
requirement that informational materials that are broadcast must be
both introduced with and concluded by a statement that reasonably
conveys that the person responsible for the materials is an agent; in
contrast, the current regulation only requires that such a statement
introduce such material. This proposed change would account for the
fact that viewers or listeners of real-time broadcasts may tune into
the programming when it is already underway, thus missing the initial
conspicuous statement. Bookending the statements at the beginning and
end of programming would increase the likelihood the conspicuous
statements will be viewed or heard by consumers of the content.
Similarly, the Department proposes adding a requirement that
programming which lasts longer than one hour include a conspicuous
statement every hour that the programming runs to increase the
likelihood that a viewer or listener will see or hear the statement.
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?
The few respondents who submitted a comment on this question
generally thought that the regulations should be updated so that the
requirements for modern information platforms were harmonized with
legacy media types. One respondent recommended that the Department
strive for parity between digital and analog content so that the
resulting filing requirements would be as neutral as possible with
respect to technology and platform. Another suggested that the
Department update its regulations to account for the growing use of
social media influencers in foreign principals' attempts to influence
the U.S. public. Finally, another commenter argued that the regulations
should require at least the same level of notification for streaming
media as they do for traditional televised or broadcast media.
Having considered the foregoing comments, the Department has
proposed regulations that would clarify that labeling requirements for
``broadcasts'' include audio-video transmittals made through internet-
based websites and other electronic platforms that are reasonably
calculated to reach an audience in the United States.
Question 17: Should the Department amend 28 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?
Neither of the two commenters who responded specifically to
Question 17 believed that the benefit that such a change would have on
increased transparency outweighed the burden on registrants. Both noted
that the information referenced was already on file and publicly
available with DOJ.
Despite these comments, the Department assesses that disclosure of
the country (or state, territory, or principality) wherein the foreign
principal is located is justified in service of FARA's transparency
goals. Corporate foreign principals may have business names that
provide no context as to the work of the corporation or its geographic
location. Adding the name of the country where the principal is located
does not make the disclosures significantly more onerous and does
provide important information at the point of viewing for those in the
[[Page 51]]
audience that do not follow up by viewing the information on the public
record. Accordingly, the Department proposes a regulation that would
require such location information as part of the conspicuous statement.
E. FARA eFile
Question 18: What changes, if any, should the Department make to
its regulations to account for the eFile system that was adopted after
the regulations were last updated in 2007?
One commenter responded that the Department should undertake a
``comprehensive review'' of its regulations and update them to account
for eFile. Several other respondents gave suggestions for improvements
to eFile itself and how the information should be submitted to the
Department (e.g., in structured data fields to make searches easier).
The Department greatly appreciates these practical recommendations
for improvement of its FARA eFile system. The Department has continued
to improve upon the eFile system, moving to a web-form fillable format
for new registrants in September 2019; that system streamlines the
inputting of information, provides for the collection of data in
structured data fields, and increases search functionality. The
Department finished migration of all active legacy registrants (i.e.,
those registered prior to September 23, 2019), who had been uploading
fillable PDFs to comply with their registration obligations, to the new
structured data format for all future filings (e.g., amendments,
supplemental statements, exhibits, short forms, informational
materials) as of May 28, 2022. The Department agrees that some
regulatory changes are necessary to account for technological
advancements. Accordingly, proposed Sec. Sec. 5.3, 5.5, and 5.206
would change how registration statements and other documents are filed
as well as how registration fees are paid.
Additionally, the proposed rule would clarify that visits to the
FARA Public Office are by appointment only. The FARA Public Office is
open to the public for review of certain public records, including
whether someone is registered. The vast bulk of those records,
however--including the FARA Unit's holdings pertaining to active
registrations from 1991 to the present, except for certain short form
registration statements containing personally identifiable
information--are readily available, at no cost to the public, through
the Department's FARA website.
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?
Commenters were generally in favor of this proposal, and two
commenters specifically noted, to the extent business contact
information was required, the underlying ostensible need for
residential contact information would disappear. The Department
believes that it needs both business contact information and
residential addresses for effective administration and enforcement of
the Act, however. In the Department's experience, having such
information is necessary to ensure that the Department can effectively
seek overdue filings and the curing of deficient ones. Under the
proposed rule, the business contact information would be provided to
the Department separately from the registration statement and
supplements.
IV. Summary of Proposed Changes to the Regulations
The Department has undertaken a review of the current regulations
to identify areas in need of clarification and modernization. Based on
the comments received in response to the ANPRM and as discussed in
greater detail above, the Department proposes to issue new regulations
to provide additional guidance in key areas and to revise, clarify, and
modernize existing provisions. The proposed changes to the regulations
are summarized below in topic-oriented fashion; for additional detail,
see the material accompanying the various questions from the ANPRM set
forth above.
The Department proposes new regulations regarding (i) exemptions to
FARA's registration requirement; (ii) the filing and labeling of
informational materials; and (iii) miscellaneous issues largely to
ensure the regulations keep pace with technological changes.
A. Exemptions
FARA contains eight exemptions that allow a person engaging in
otherwise covered activities for or in the interests of a foreign
principal to be exempt from registration if certain criteria are met.
The Department proposes two changes to Sec. 5.304, addressing
exemptions for bona fide trade and commerce, or activity that does not
serve predominantly a foreign interest, 22 U.S.C. 613(d), and changes
to Sec. 5.306 addressing the exemption for activity by attorneys in
connection with certain proceedings, investigations, and inquiries, 22
U.S.C. 613(g).
1. 22 U.S.C. 613(d) Exemptions
FARA provides exemptions for persons who engage or agree to engage
only in either ``(1) 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.'' \25\
With regard to the first exemption, the Department proposes two changes
to the regulation. The first, to Sec. 5.304(b), would delete the word
``directly'' in the phrase ``directly promote'' to clarify that the
exemption does not apply when the agent engages in political activities
or where the activities promote--rather than ``directly promote,'' as
the current language reads--the political or public interests of a
foreign government or foreign political party. Doing so would remove
the ambiguity flagged by commenters and would be consistent with
legislative history, as explained in Section III.B.1 of this preamble.
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\25\ 22 U.S.C. 613(d)(1), (2).
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The second proposed change affecting Sec. 5.304(b) of the
regulation implementing section 613(d)(1) would allow a person or
employee of such person who engages or agrees to engage only in
promoting bona fide recreational or business travel to a foreign
country to come within this exemption where the agent's relationship to
a foreign principal is apparent to the public. In the past, the
Department has taken the position that such activities are political
because recreational tourism ``creates an influx of capital and a host
of jobs'' for the local population and has therefore required
registration for such activities.\26\ The Department has reconsidered
that position in the course of analyzing revisions to the FARA
regulations. The Department now believes that the promotion of
recreational or business tourism is too attenuated from the definition
of political activities to warrant imposing FARA registration
obligations on agents who promote only recreational or business tourism
in foreign countries. Moreover, given that ``[f]oreign governments
engage in private activities of a commercial nature'' that--as is the
case with promoting recreational tourism--``may not[ ] involve
political or policy matters,'' \27\ the Department concludes that
persons engaged only in
[[Page 52]]
promoting bona fide recreational or business tourism to foreign
countries are engaged in private activities ``in furtherance of the
bona fide trade or commerce'' of a foreign principal. 28 CFR 5.304(b).
Those activities do not, for purposes of section 613(d)(1), promote the
public or political interests of the foreign government or foreign
political party. Even without FARA registration for these persons,
however, the Department expects the foreign interests to be apparent to
the American public because the activities will necessarily identify
the specific country to which recreational or business tourism is being
promoted and because entities engaged in such work typically
incorporate the name of that country into their own brand names.
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\26\ See, e.g., Jan. 20, 1984 Advisory Opinion, https://www.justice.gov/nsd-fara/page/file/1046156/dl?inline=.
\27\ S. Rep. No. 89-143, at 11.
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Regarding the exemption in section 613(d)(2), the Department
proposes substantial revisions to the current regulation, 28 CFR
5.304(c), based on both the public comments and our own experience
applying the current regulation over the past two decades. There are
three proposed changes. The first change would make explicit that,
consistent with the plain meaning of the statutory language, the
exemption applies to noncommercial interests as well as commercial
interests. The public comments were consistent in their request for
such clarity. See Section III.B.1 of this preamble.
The second change would create a set of four exclusions to the
exemption. The exclusions focus only on the relationship (if any)
between the activities and a foreign government or foreign political
party, which is the key relationship animating the need for FARA
registration. The Department has selected specific exclusionary
circumstances that are appropriate proxies for the statute's
predominant-interest test. Under the proposed rule, an agent would be
considered to serve a predominantly foreign interest and categorically
precluded from qualifying for the exemption if (1) the intent or
purpose of the activities is to benefit the political or public
interests of the foreign government or political party; (2) a foreign
government or political party influences the activities; (3) the
principal beneficiary is a foreign government or political party; or
(4) activities on behalf of a state-owned enterprise (or an entity that
is directed or supervised by a foreign government or political party)
promote the political or public interests of that foreign government or
political party.
The third change would apply when none of these exclusions are
triggered. In those circumstances, the Department is proposing to
replace its current test, which applies only when state-owned
enterprises are involved. The Department is instead proposing to adopt
a totality-of-the-circumstances test to determine whether the
activities in question predominantly serve a foreign or domestic
interest. To guide that test, the Department is proposing a set of non-
exhaustive common factors that it may consider in future cases. The
Department declines to propose a bright-line rule; the subjective test
offered by commenters is problematic for the reasons explained in
Section III.A.B.1(b) of this preamble, and a test that accounts for all
scenarios could not otherwise be identified. The Department also
declines to propose a series of tests that would apply separately in
particular contexts (e.g., separate tests for the commercial and non-
commercial contexts or for cases where a state-owned enterprise was or
was not involved) because the Department concluded that these tests
quickly became too numerous and unwieldy.
To guide its totality-of-the-circumstances inquiry, the Department
proposes factors drawn from components of the legislative history of
section 613(d)(2) as well as the Department's decades of experience
evaluating this issue. The Department proposes the following non-
exhaustive factors: (i) whether the public and relevant government
officials already know about the relationship between the agent and the
foreign principal; (ii) whether the commercial activities further the
interests of the domestic commercial entity more or less than the
foreign commercial entity; (iii) the degree of influence (including
through financing) that foreign sources have over domestic non-
commercial entities such as nonprofits; (iv) whether the activities
concern laws and policies applicable to domestic or foreign interests;
and (v) the extent to which any foreign principal influences the
activities.
2. 22 U.S.C. 613(g) Exemption
FARA provides for an exemption to registration for persons
qualified to practice law who engage or agree to engage in legal
representation of a disclosed foreign principal before a court or any
agency proceedings, investigations, or inquiries.\28\ Practitioners
have expressed frustration with the regulation's lack of clarity about
when activities outside of the courtroom, agency hearing room, or
investigation or inquiry may still be covered by the exemption. The
proposed rule in Sec. 5.306 would clarify that the attorney of record
in any of the covered proceedings, investigations, or inquiries can
also provide certain information about the activities to others, such
as the press, without losing the exemption. Those hearing or reading
the information the attorney provides will recognize that the attorney
is acting as the agent of the client and can consider that fact in
evaluating the information without the need for the attorney to
register.
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\28\ See 22 U.S.C. 613(g).
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The proposed rule in Sec. 5.306(b) also would clarify that, to
stay within the parameters of the exemption, the attorney's activities
outside of the proceeding, investigation, or inquiry must not
constitute ``political activities'' within the meaning of FARA. This
means, for example, that the attorney could not qualify for the
exemption while seeking to persuade persons who are not involved in the
proceeding, investigation, or inquiry--such as the public or Congress--
to adopt or change foreign or domestic U.S. policy. Doing so goes
beyond the bounds of normal legal representation of a specific client
in a specific matter and goes to the heart of the transparency goals of
FARA and thus requires registration.
B. Informational Materials
The Department is proposing a comprehensive overhaul of FARA
regulations regarding ``informational materials,'' largely to keep pace
with technological advances.\29\ FARA states that any agent who
distributes ``informational materials'' \30\ to two or more persons
must file two copies of those materials with the Department within 48
hours and that, regardless of the number of persons who receive the
materials, those materials must contain a conspicuous statement that
discloses that they are being distributed on behalf of the foreign
principal.\31\ Based on the comments received to the ANPRM, as well as
the Department's own analysis of the need for regulatory changes, the
Department proposes four key changes.
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\29\ The current regulations for filing and labeling
informational materials are 28 CFR 5.400 and 5.402, respectively.
\30\ In 1995, Congress amended FARA and deleted the statute's
antiquated definition of ``political propaganda'' and replaced that
term with ``informational materials,'' without providing a
definition. See 22 U.S.C. 611(j); Lobbying Disclosure Act of 1995,
Public Law 104-65, Sec. 9(1)(A), 109 Stat. 699. There is no
definition in the current regulations either.
\31\ 22 U.S.C. 614(a), (b).
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First, in Sec. 5.100(g), the Department proposes defining
``informational materials'' by regulation (for the first time) as any
material that the person disseminating it believes or has reason to
believe will, or which the person intends to in any way, influence any
[[Page 53]]
agency or official of the Government of the United States or any
section of the public within the United States, with reference to
formulating, adopting, or changing the domestic or foreign policies of
the United States or with reference to the political or public
interests, policies, or relations of a government of a foreign country
or a foreign political party. Informational materials that satisfy the
proposed definition would require a conspicuous statement that they are
being distributed on behalf of the foreign principal.\32\ The
definition also makes clear that the way the materials are
distributed--in print, online, or by any other method--has no bearing
on the statutory requirement to file and label them.
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\32\ 22 U.S.C. 614(b).
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Second, in Sec. Sec. 5.3-5.5 and 5.206, the Department proposes
changes to reflect that the Department has adopted a FARA eFile system
that makes it easier for new registrants to keep their registrations
current and for the public to search for and download information about
FARA registrants. One key change, in Sec. 5.400, is that, absent
special circumstances, agents will be required to file their
informational materials through the eFile system.
Third, in response to frequent calls to update FARA regulations due
to technological advances in how informational materials are
disseminated (such as over social media), the Department proposes in
Sec. 5.401 significant changes relating to how informational materials
must be labeled.\33\ To enhance transparency, the Department proposes
that the conspicuous statement itself include the name of the country
or territory where the foreign principal is located because that
information may not be evident from the registration materials. The
proposed labeling regulations then set forth a standard labeling
requirement that will vary slightly depending on the medium through
which the materials are disseminated, such as through television,
radio, or social media platforms. Each labeling requirement is intended
to maximize transparency while considering the nature and limitations
of the medium by which the informational materials are disseminated.
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\33\ The ``Attorney General may by rule define what constitutes
a conspicuous statement.'' 22 U.S.C. 614(b).
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Fourth and finally, the Department proposes in Sec. 5.401(h)(2) to
clarify that, when an agent requests information or advice from any
agency or official of the government (including Congress), those
communications--even when they pertain only to scheduling meetings to
discuss the request--must contain a statement about the agent's
relationship with a foreign principal.\34\ This proposed rule would
fill a current gap that allows agents to schedule meetings to discuss a
request with government officials without ever having to identify the
foreign principal for which the request is going to be made until the
agent raises the foreign principal's request at the meeting.
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\34\ See 22 U.S.C. 614(e) (requiring information furnished by,
or a request for information by, an agent of a foreign principal to
an agency or official of the Government, including Congress, to
contain a statement that the person is an agent of a foreign
principal).
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C. Other Proposed Changes to the Regulations
The Department proposes two other categories of regulatory changes
and various miscellaneous changes to the existing regulations. The
first, in Sec. 5.2, relates to the Department's issuance of advisory
opinions.\35\ The current regulations provide that a person may submit
an inquiry to the Department and obtain, for a small fee, a
determination of whether FARA applies to current or contemplated
activities. Among other changes, the proposed rule would require the
inquiries be submitted through the FARA website, expand the information
required to be submitted, and clarify who should sign the inquiry.
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\35\ See 28 CFR 5.2.
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The second category, in Sec. Sec. 5.212, 5.600, and 5.800, is a
series of proposed provisions necessitated by recent technological
changes. These include how registration statements are filed, how
registration fees are paid, the limited need for in-person public
examination of registration statements when they are available online,
and the Department's need for an agent's business email address to
expedite communications with the agent.
In addition, the Department proposes a number of conforming changes
to the regulations in light of the other changes proposed in this NPRM.
To the extent not already discussed above, these additional
proposed changes are as follows, in the order in which they appear in
the proposed rule:
(1) For uniformity, all references to the ``FARA Registration
Unit'' in part 5 would be replaced by the ``FARA Unit.''
(2) Section 5.1(c) would be amended to add that copies of the Act,
and of the rules, regulations, and non-fillable exemplars of forms, may
be obtained from the Department's FARA website in addition to, as is
currently the case, in hard-copy form upon request without charge from
the FARA Unit.
(3) Section 5.2(c) would be amended to require that payment of the
filing fee for a Rule 2 advisory opinion must be made electronically
via the Department's FARA website.
(4) Section 5.2(d) would be amended to require that a request for a
Rule 2 advisory opinion be submitted in writing to the FARA Unit via
the Department's FARA website rather than sent to the Assistant
Attorney General for National Security.
(5) Section 5.2(e)(4) would be amended for clarity to require the
party to include the statutory or regulatory basis for the exemption
claimed only in instances in which the party is claiming such an
exemption.
(6) New Sec. 5.2(e)(5) would be added to require that, when a
request for a Rule 2 advisory opinion is not regarding an individual,
the request must include a list of partners, officers or directors or
persons performing the functions of an officer or director of the
entity and all relevant and material information regarding their
current or past affiliation with a foreign government or foreign
political party.
(7) Section 5.2(f), previously titled ``Certifications,'' would be
retitled ``Required Signatures.'' The substance of the final sentence
of current Sec. 5.2(f), which deals with the certification that a
request for a Rule 2 advisory opinion is true, complete, and correct,
would be incorporated into new Sec. 5.2(h).
(8) The final sentence of Sec. 5.2(g) would be amended to clarify
that all subsequent submissions by a party in connection with a request
for a Rule 2 advisory opinion should be signed by the same person or
persons who signed the original request ``except for good cause,'' to
ensure consistency of attestation as to the contents of the
submissions.
(9) New Sec. 5.2(h), ``Certifications,'' would be added to
incorporate the substance of the sentence that is currently at the end
of Sec. 5.2(f), as noted above, and to clarify that the required
certification must be made in connection with the initial request for a
Rule 2 advisory opinion pursuant to Sec. 5.2(f) and any subsequent
submissions of additional information pursuant to Sec. 5.2(g).
(10) New Sec. 5.2(o) would be added to make clear that the
Department will not respond to a request for a Rule 2 advisory opinion
that is not in compliance with all of the requirements of Sec. 5.2.
(11) Section 5.3 would be revised to remove the requirement that
all filings be made in hard copy. Instead, all
[[Page 54]]
filings would be required to be made electronically through the FARA
eFile system, which is available through the Department's FARA website.
Documents would be deemed filed upon their submission electronically
and the payment of registration fees, all through the FARA eFile
system.
(12) Section 5.5 would be revised to require that all registration
fees shall be paid electronically through the FARA eFile system, doing
away with the requirement of payment by cash, check, or money order.
(13) Section 5.100(a) would be amended to add new subsection (13),
establishing ``FARA Unit'' as a defined term.
(14) Section 5.202(e) would be amended to eliminate the reference
to ``Form OBD-66'' and to state instead that a short form registration
statement shall be filed on a form provided by the Department; to
require that a short form registrant must file a separate Short Form
Registration Statement for each foreign principal represented by such
registrant; and that any changes affecting information previously
furnished shall be filed as an amendment to the short form registration
statement rather than via a new short form registration statement.
(15) Section 5.206(b) would be amended to eliminate typewritten or
handwritten filings of registration statements and related documents
and to require that all such filings be made through the Department's
FARA eFile system.
(16) New Sec. 5.206(e) would be added to specify the circumstances
under which a registrant may disclose required information via the
uploading of a spreadsheet to the Department's FARA eFile system.
(17) New Sec. 5.212 would be added to require that each registrant
provide a business email address and business telephone number, in
order to facilitate easier communications with the FARA Unit.
(18) Section 5.302 would be amended to replace the outdated
reference to ``Notification of Status with a Foreign Government (Form
D.S. 394)'' with ``Notification of Appointment of Foreign Government
Employee via the Department of State's electronic system (eGov) or
equivalent successor system.''
(19) Section 5.600 would be amended to eliminate the reference to
``political propaganda,'' to state that registration statements and
related material required to be filed by a registrant will be available
to the public via the Department's FARA website, and to state that to
the extent any registration statements or any other publicly available
materials filed pursuant to FARA are not available on the FARA website,
they may be viewed at the FARA Unit by appointment, during the posted
public hours of operation on an official business day.
(20) To eliminate a discontinuity in the numbering of the
regulations, current Sec. 5.402 would be re-numbered as Sec. 5.401.
(21) Section 5.800 would be amended to replace the requirement of
deposit in the U.S. mails with submission through the Department's FARA
eFile system.
(22) Section 5.1101 would be amended to state that copies of the
Report of the Attorney General to the Congress on the Administration of
the Foreign Agents Registration Act of 1938, as amended, shall be made
available to the public on the Department's FARA website free of
charge, rather than being sold to the public.
D. The Department's Inability To Redact, via Regulation, Residential
Address Information From Online Registration Materials
Although this topic did not come up in the public comments to the
ANPRM, the Department examined whether it would be possible to propose
a regulation that would allow FARA Unit personnel to redact the
residential addresses of FARA registrants from the registration
statements and supplements prior to making them publicly available
online. Continuing to make this information available online may create
privacy and safety concerns for registrants lawfully complying with the
requirements of the Act and may discourage registration.
While these privacy and safety issues are of great concern to the
Department, the language of the Act does not permit the redaction of
residential address information prior to the posting of registration
information online. 22 U.S.C. 612(a) sets forth certain information
that must be included in a registration statement. Among other things,
that provision requires registration statements to include registrants'
residential addresses.\36\ 22 U.S.C. 616(d)(1) states that the
``Attorney General shall maintain, and make available to the public
over the internet . . . an electronic database that includes the
information contained in registration statements and updates filed
under this subchapter; and is searchable and sortable, at a minimum, by
each of the categories of information described in Section 612(a) of
this title'' (emphases added). Section 616(d)(1)(B) requires the
database to be searchable and sortable by ``each'' category of
information described in section 612(a),\37\ which includes the
registrant's residential address.\38\
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\36\ 22 U.S.C. 612(a)(1), (2).
\37\ 22 U.S.C. 616(d)(1).
\38\ See 22 U.S.C. 612(a)(1).
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V. Regulatory Certifications
A. Regulatory Flexibility Act
The Attorney General, under the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule and, by approving it,
certifies that it would not have a significant economic impact upon a
substantial number of small entities. FARA registrants typically tend
to fall into several different categories of businesses: law firms,
tourist offices operated by foreign governments, advertising agencies,
public relations firms, consulting firms, nonprofit organizations,
trade associations, foreign political parties, individuals (e.g.,
consultants, activists) not associated with any formal organization,
non-governmental organizations, media outlets, and government relations
lobbying firms. As of the publication of this NPRM, there are only
about 517 active FARA registrants. Dividing these FARA registrants into
the various categories of businesses, and then into the number of such
registrants that also qualify as small entities within each category,
reveals that the FARA registrants would represent a minuscule
percentage of entities in each category that qualify as small entities.
FARA is an important transparency tool used to address foreign
influence in the United States. As noted more fully in Section II of
this preamble, FARA ensures that the Government and the American people
are aware of persons who are acting within this country as agents of
foreign principals and are informed about the activities undertaken by
such agents to influence public opinion or governmental action on
political or policy matters. Congress enacted FARA as a comprehensive
legislative framework to be applied uniformly to all persons and
activities that fall within its jurisdiction, i.e., to all persons
engaging in registrable activities. All FARA registrants bear the same
statutory burden because they have chosen to engage in activities that
are subject to the jurisdiction of the Act.
The Department took the economic impact of its proposed rule into
account during the drafting of this NPRM, with the intent that any
incremental economic burden on agents would be outweighed by the
clarity and certainty the rule would give to agents and the
[[Page 55]]
transparency they would give to the American public and to American
policymakers. For example, the proposed rule would streamline the
process of filing registration materials, paying fees, and filing
informational materials with the FARA Unit by requiring that all such
filings be made via FARA eFile. Additionally, one of the proposed
revisions would redound to the benefit of small entities because it
would clarify that those who engage only in transparently promoting
bona fide recreational or business travel to a foreign country--
typically small entities--do not need to register under FARA. And,
finally, the proposed rule about labeling informational materials,
particularly online, was carefully crafted to require no more labelling
than the Department has determined is necessary to ensure adequate
transparency, such that it would not unduly burden any FARA registrant,
of any size, that is endeavoring to comply with the requirements of the
Act.
For these reasons, the Attorney General certifies that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. The Department of Justice
solicits comments regarding this determination.
B. Unfunded Mandates Reform Act of 1995
This proposed 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 (adjusted for inflation) in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
C. Congressional Review Act
This proposed rule is not a major rule as defined by the
Congressional Review Act, 5 U.S.C. 804.
D. Executive Orders 12866, 13563, and 14094 (Regulatory Review)
The Office of Management and Budget (``OMB'') has determined that
this rulemaking is a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review.
Accordingly, this proposed rule has been submitted to OMB for review.
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation; in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation; and in accordance with Executive
Order 14094, ``Modernizing Regulatory Review.''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of using the best available
methods to quantify costs and benefits, reducing costs, harmonizing
rules, and promoting flexibility.
The Department estimates that the proposed revisions and
modernization of the implementing regulation will provide greater
clarity for all registrants and potential registrants. As discussed in
reference to the Regulatory Flexibility Act above, the Department
assesses that any incremental economic burden on some agents would be
outweighed by the clarity and certainty the regulation would give to
all agents and potential agents, and by the transparency the regulation
would give to the American public and to American policymakers. For
example, the proposed rule will reduce the regulatory burden on those
who engage only in transparently promoting bona fide recreational or
business travel to a foreign country and will no longer have to
register. Likewise, a more detailed system for labeling and filing
informational materials will benefit both registrants who disseminate
these materials and members of the public who view them.
E. Executive Order 13132 (Federalism)
This proposed rule will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Department has determined that this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 to specify
provisions in clear language.
G. Paperwork Reduction Act of 1995
This proposed rule would call for collections of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20). 5 CFR
1320.3(c) defines the ``collection of information'' to include
reporting, recordkeeping, monitoring, posting, labeling, and other
similar actions. The title and description of the information
collection, a description of those who must collect the information,
and an estimate of the total annual burden follow. The estimate covers
the time for reviewing instructions, searching existing sources of
data, gathering and maintaining the data needed, and completing and
reviewing the collection.
The requirements introduced by this proposed rule would be related
to the existing collections covered by OMB Numbers 1124-0001, 1124-
0002, 1124-0003, 1124-0004, 1124-0005 and 1124-0006. Additionally, this
proposed rule would result in a one-time decrease in paperwork burdens
of FARA applications due to persons who engage only in transparently
promoting bona fide recreational or business travel to a foreign
country no longer having to register under FARA. There are currently
approximately 56 such registrants, and the total number of FARA
registrants will therefore decrease on a one-time basis by 56 as a
result, although each such respondent would need to file a statement
terminating their registration. As the required frequency of the filing
of the six forms listed below varies by form and not all 56 such
registrants necessarily file all such forms in a typical year, except
as expressly provided otherwise with respect to form OMB Number 1124-
0002, it is not possible to accurately estimate the differential impact
of this one-time reduction in the number of FARA registrants on the
aggregate time burden associated with each of these forms.
OMB Number 1124-0001, Registration Statement of Foreign Agents, is
filed once, when the respondent initially registers under FARA. Based
on historical data from July 2022 to July 2023, if an estimated 119
respondents register annually, with an estimated time burden of 0.75
hours (45 minutes) per respondent, the total estimated annual time
burden on these respondents would be approximately 89 hours.
OMB Number 1124-0002, Supplemental Statement to Registration
Statement of Foreign Agents, is filed twice annually as assigned by the
FARA Unit. The current number of registrants
[[Page 56]]
is approximately 517. If, on a one-time basis, an estimated 56 current
registrants who engage only in transparently promoting bona fide
recreational or business travel to a foreign country terminate their
registrations as a result of this proposed rulemaking, then an
estimated 461 respondents would file this form twice annually in the
year immediately following the effective date of the final rulemaking.
Given an estimated time burden of 1.17 hours (70 minutes) per filing,
the total estimated time burden on these respondents would be
approximately 1,079 hours in the year immediately following the
effective date of the final rulemaking.
OMB Number 1124-0003, Amendment to Registration Statement of
Foreign Agents, is filed as needed by respondents. Based on historical
data from July 2022 to July 2023, if in a typical year all respondents
combined file this form a total of 630 times, with an estimated time
burden of 0.75 hours (45 minutes) per filing, the total estimated time
burden on these respondents would be approximately 473 hours.
OMB Number 1124-0004, Exhibit B to Registration Statement of
Foreign Agents, is filed as needed by respondents. Based on historical
data from July 2022 to July 2023, if in a typical year all respondents
file this form a total number of 451 times combined, with an estimated
time burden of 0.33 hours (20 minutes) per filing, the total estimated
time burden on these respondents would be approximately 149 hours.
OMB Number 1124-0005, Short Form to Registration Statement of
Foreign Agents, is filed as needed by respondents. Based on historical
data from July 2022 to July 2023, if in a typical year all respondents
file this form a total of 1,149 times combined, with an estimated time
burden of 0.23 hours (14 minutes) per filing, the total estimated time
burden on these respondents would be approximately 264 hours.
OMB Number 1124-0006, Exhibit A to Registration Statement of
Foreign Agents, is filed as needed by respondents. Based on historical
data from July 2022 to July 2023, if in a typical year all respondents
file this form a total of 451 times combined, with an estimated time
burden of 0.22 hours (13 minutes) per filing, the total estimated time
burden on these respondents would be approximately 99 hours.
List of Subjects in 28 CFR Part 5
Aliens, Foreign relations, Reporting and recordkeeping
requirements, Security measures.
Accordingly, for the reasons set forth above, the Attorney General
proposes to amend part 5 of chapter I of title 28 of the Code of
Federal Regulations as follows:
PART 5--ADMINISTRATION AND ENFORCEMENT OF THE FOREIGN AGENTS
REGISTRATION ACT OF 1938, AS AMENDED
0
1. The authority citation for 28 CFR part 5 continues to read as
follows:
Authority: 28 U.S.C. 509, 510; Section 1, 56 Stat. 248, 257 (22
U.S.C. 620); title I, Pub. L. 102-395, 106 Stat. 1828, 1831 (22
U.S.C. 612 note).
0
2. Amend Sec. 5.1 by revising paragraph (c), to read as follows:
Sec. 5.1 Administration and enforcement of the Act.
* * * * *
(c) Copies of the Act, the rules, regulations, non-fillable
exemplars of forms prescribed pursuant to the Act, and information
concerning the foregoing may be obtained on the Department's FARA
website and upon request without charge from the National Security
Division, FARA Unit, Department of Justice, Washington, DC 20530.
* * * * *
0
3. Amend Sec. 5.2 by:
0
a. Changing the designations of paragraphs (h) through (m) to
paragraphs (i) through (n);
0
b. Revising paragraphs (c), (d), (e)(4), (f), and (g); and by
0
c. Adding new paragraphs (e)(5), (h), and (o).
The revisions and additions read as follows:
Sec. 5.2 Inquiries concerning application of the Act.
* * * * *
(c) Fee. All requests for statements of the Department's present
enforcement intentions must be accompanied by a non-refundable filing
fee submitted in accordance with Sec. 5.5. Payment of the filing fee
shall be made electronically via the Department's FARA website.
(d) Submission. A review request must be submitted in writing to
the FARA Unit through the Department's FARA website.
(e) * * *
(4) In cases where a party is seeking an exemption or exclusion,
the applicable statutory or regulatory basis for the exemption or
exclusion claimed.
(5) In cases where a request is not for or regarding an individual,
a list of partners, officers or directors or persons performing the
functions of an officer or director of the entity and all relevant and
material information regarding their current or past affiliation with a
foreign government or foreign political party.
(f) Required Signatures. If the requesting party is an individual,
the review request must be signed by the prospective or current agent,
or, if the requesting party is not an individual, the review request
must be signed on behalf of each requesting party by an officer, a
director, a person performing the functions of an officer or a director
of, or an attorney for, the requesting party.
(g) Additional information. Each party shall provide any additional
information or documents the National Security Division may thereafter
request in order to review a matter. Any information furnished orally
shall be confirmed promptly in writing. All submissions shall be signed
by the same person or persons who signed the initial review request,
except for good cause.
(h) Certifications. Each such person signing a review request
pursuant to Sec. 5.2(f) or a submission of information pursuant to
Sec. 5.2(g) must certify that the document(s) contain a true, correct,
and complete disclosure with respect to the proposed conduct or
additional information described.
* * * * *
(o) The Department will not respond to any request for its present
enforcement intentions that is not in compliance with the provisions of
this section.
* * * * *
0
4. Revise Sec. 5.3 to read as follows:
Sec. 5.3 Filing of a registration statement.
All registration statements and supplements, amendments, exhibits
thereto, and other documents and papers filed pursuant to the Act are
required to be filed using the Department's FARA eFile system, which
can be accessed through the Department's FARA website. Documents shall
be deemed to be filed upon submission and payment of registration fees
through FARA eFile.
* * * * *
0
5. Amend Sec. 5.5 by:
0
a. Revising paragraph (a);
0
b. In paragraph (b) removing ``FARA Registration Unit'' where it
appears and adding in its place ``FARA Unit.''
0
c. In paragraphs (b), (c), (e), (f), and (g), removing ``Registration
Unit'' each place it appears and adding in its place ``FARA Unit.''
[[Page 57]]
The revision reads as follows:
Sec. 5.5 Registration fees.
(a) A registrant shall pay a registration fee with each initial
registration statement (including an Exhibit A for one foreign
principal) filed under Sec. 5.200 and each supplemental registration
statement filed under Sec. 5.203 at the time such registration
statement is filed. The registration fee shall be paid through the
Department's FARA website using the FARA eFile system.
* * * * *
0
6. Amend Sec. 5.100 by:
0
a. In paragraph (a)(6) removing ``Registration Unit'' each place it
appears and adding in its place ``FARA Unit''; and
0
b. Adding paragraphs (a)(13) and paragraph (g).
The additions read as follows:
Sec. 5.100 Definition of terms.
* * * * *
(13) The term FARA Unit means the Foreign Agents Registration Act
Unit, National Security Division, U.S. Department of Justice.
* * * * *
(g) The term informational materials, as used in section 4 of the
Act, shall be deemed to include any material that the person
disseminating it believes or has reason to believe will, or which the
person intends to in any way, influence any agency or official of the
Government of the United States or any section of the public within the
United States, with reference to formulating, adopting, or changing the
domestic or foreign policies of the United States or with reference to
the political or public interests, policies, or relations of a
government of a foreign country or a foreign political party. The
manner or form of dissemination, whether in print, electronic, or
otherwise, does not change whether material falls under this
definition.
Sec. Sec. 5.200 and 5.201 [Amended]
0
7. Amend Sec. Sec. 5.200(b), 5.201(a)(1), 5.201(a)(2), and 5.201(b) by
removing ``Registration Unit'' each place it appears and adding in its
place ``FARA Unit.''
0
8. Amend Sec. 5.202 by revising paragraph (e), to read as follows:
Sec. 5.202 Short form registration statement.
* * * * *
(e) The short form registration statement shall be filed on a form
provided by the Department. When required to file a short form
registration statement, the person rendering services shall file a
separate short form registration statement for each foreign principal
represented by the person. Any change affecting the information
furnished with respect to the nature of the services rendered by the
person filing the statement, or the compensation the person receives,
shall require the filing of an amendment to the short form registration
statement within 10 days after the occurrence of such change. There is
no requirement to file exhibits or supplemental statements to a short
form registration statement.
Sec. Sec. 5.204 and 5.205 [Amended]
0
9. Amend Sec. Sec. 5.204(a) and 5.205(a) by removing ``Registration
Unit'' each place it appears and adding in its place ``FARA Unit.''
0
10. Amend Sec. 5.206 by revising paragraph (b) and adding paragraph
(e) to read as follows:
Sec. 5.206 Language and wording of registration statement.
* * * * *
(b) A statement, amendment, exhibit, or notice required to be filed
under the Act shall be filed through the Department's FARA eFile
system.
* * * * *
(e) Any response to an item on each pertinent form that allows a
registrant to disclose information by uploading a comma-separated-value
(``csv'') spreadsheet to the Department's FARA eFile system shall be
made using a csv spreadsheet template provided on the Department's FARA
website. Registrants may populate the spreadsheet template in advance
and upload the information into the Department's FARA eFile system.
Only spreadsheets provided on the Department's website may be uploaded
to the Department's FARA eFile system.
0
11. Add Sec. 5.212, to read as follows:
Sec. 5.212 Provision of business contact information.
Each registrant shall provide, separate from the registration
statement, a business email address and business telephone number, to
facilitate easier communications with the FARA Unit.
0
12. Revise Sec. 5.302 to read as follows:
Sec. 5.302 Exemptions under sections 3(b) and (c) of the Act.
The exemptions provided by sections 3(b) and (c) of the Act shall
not be available to any person described therein unless such person has
filed with the Secretary of State an accepted Notification of
Appointment of Foreign Government Employee via the Department of
State's electronic system (eGov) or equivalent successor system.
0
13. Amend Sec. 5.304 by:
0
a. Revising paragraphs (b) and (c);
0
b. Redesignating paragraph (d) as paragraph (e); and
0
c. Adding a new paragraph (d).
The addition and revisions read as follows:
Sec. 5.304 Exemptions under section 3(d) of the Act.
* * * * *
(b) For the purpose of section 3(d)(1) of the Act:
(1) Activities of an agent of a foreign principal as defined in
section 1(c) of the Act, in furtherance of the bona fide trade or
commerce of such foreign principal, shall be considered ``private,''
even though the foreign principal is owned or controlled by a foreign
government, so long as the activities do not promote the public or
political interests of the foreign government.
(2) Any person or employee of such person who engages or agrees to
engage only in transparently promoting bona fide recreational or
business travel to a foreign country shall be deemed to be engaging or
agreeing to engage in private and nonpolitical activities in
furtherance of the bona fide trade or commerce of a foreign principal.
(c) For purposes of section 3(d)(2) of the Act, this exemption is
available to an agent of a foreign principal engaged in activities for
or in the interests of commercial and non-commercial entities alike, so
long as the activities do not serve predominantly a foreign interest.
(d) For purposes of section 3(d)(2) of the Act:
(1) The activities of an agent of a foreign principal serve
predominantly a foreign interest, and the exemption is unavailable,
where any of the following is true:
(i) The intent or purpose of the activities is to promote the
political or public interests of a foreign government or foreign
political party;
(ii) A foreign government or foreign political party influences the
activities;
(iii) The principal beneficiary of the activities is a foreign
government or foreign political party; or
(iv) In the case of a person whose activities are directly or
indirectly supervised, directed, controlled, or financed in whole or in
substantial part by a government of a foreign country or a foreign
political party, the activities promote the public or political
interests of a foreign government or of a foreign political party; and
(2) In cases in which the exclusions in paragraph (d)(1) of this
section do not preclude the exemption, additional factors will inform
an analysis as to whether the activities nonetheless serve
predominantly a foreign interest. Such factors include:
[[Page 58]]
(i) Whether the relationship to and identity of any foreign
principal is open and obvious to the public and explicitly disclosed to
any agency or official of the United States with whom such activities
are conducted;
(ii) Whether, in the case of a domestic commercial entity, the
activities further the bona fide commercial, industrial, or financial
interests of that domestic entity as much or more than the commercial,
industrial, or financial interests of a related foreign commercial
entity;
(iii) In the case of an agent of a non-commercial or nonprofit
organization located in the United States, the extent to which the
activities of the organization are influenced by a foreign entity or
concern a foreign jurisdiction, including the extent to which domestic
sources rather than foreign ones fund the activities of the
organization;
(iv) Whether the activities concern laws or policies applicable to
the U.S. operations or interests of the domestic person; and
(v) The extent to which a foreign principal influences the
activities of the domestic person.
* * * * *
0
14. Revise Sec. 5.306 to read as follows:
Sec. 5.306 Exemption under section 3(g) of the Act.
(a) Any person qualified to practice law who 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 may be entitled to the section 3(g) exemption provided such
representation does not extend beyond the bounds of normal legal
representation as described in paragraph (b) of this section.
(b) ``Legal representation'' includes:
(1) Activities by retained and disclosed counsel intended to
influence or persuade agency personnel or officials in the course of
judicial proceedings; criminal law or civil enforcement inquiries,
investigations, or proceedings; or agency proceedings conducted on the
record, concerning the disclosed foreign principal; and
(2) Activities other than political activities, by the same
counsel, that fall within the bounds of normal legal representation and
involve providing information about the aforementioned proceeding,
inquiry, or investigation, during the pendency of that proceeding,
inquiry, or investigation to persons other than the agency or official
decision-makers.
(c) Regardless of whether court or agency procedures require it,
the attorney engaged in legal representation on behalf of a foreign
principal before a court of law or an agency of the Government of the
United States must disclose the attorney's foreign principal to the
court or agency personnel or officials before whom the attorney
appears.
0
15. Amend Sec. 5.400 by
0
a. In paragraphs (a), (b), and (c), removing ``Registration Unit'' each
place it appears and adding in its place ``FARA Unit''; and
0
b. Adding paragraphs (d) and (e).
The additions read as follows:
Sec. 5.400 Filing of informational materials.
* * * * *
(d) Unless the format of the informational materials is
incompatible with the Department's FARA eFile system and the Department
has granted permission to file the materials by an alternative and
approved method, informational materials shall be filed with the
Attorney General through the Department's FARA eFile system.
(e) Unless otherwise directed by the Assistant Attorney General,
screen captures, or contemporaneous reproductions of all informational
materials referenced in Sec. 5.401(f)-(g), shall be filed as a PDF or
other standard electronic file format compatible with the Department's
FARA eFile system.
0
16. Add Sec. 5.401 to read as follows:
Sec. 5.401 Labeling of informational materials; other requirements.
(a) Definition of a ``conspicuous statement.'' Except as set forth
specifically in paragraphs (b) through (g) of this section, a
conspicuous statement placed on informational materials must contain
the language set forth in section 4(b) of the Act as well as the name
of the foreign principal, the country (or state, territory, or
principality) in which the foreign principal is located, the FARA
registration number, and note that further information is available via
the FARA website of the Department of Justice.
(b) Default labeling requirement. Subject to the additional or
different requirements set forth in paragraphs (c) through (g) of this
section when applicable, informational materials shall be deemed to
contain a conspicuous statement if they contain a label satisfying the
requirements of section 4(b) of the Act and paragraph (a) of this
section at the beginning of the materials in the language or languages
used therein and in a font size and color that are easy to read.
(c) Author. When informational materials contain an author's
byline, signature block, or biographical information, the conspicuous
statement must be placed in the byline, signature block, or
biographical information in addition to the beginning of the materials,
as set forth in paragraph (b) of this section.
(d) Televised or broadcast. (1) When informational materials are
televised or broadcast, they must contain a conspicuous statement at
the beginning and the end of the informational materials. If the
running time for the informational materials exceeds one hour, then the
conspicuous statement must be repeated once per hour in addition to
occurring at the beginning and at the end of the informational
materials. If the informational materials are presented in audio only,
then the conspicuous statement must be made audibly in a cadence that
is easy for listeners to comprehend. If the informational materials are
presented in an audio-visual format, then the conspicuous statement
must be made audibly in a cadence that is easy for listeners to
comprehend and must appear on the screen long enough to be noticed,
read, and understood by the viewer.
(2) As used in this part, the term ``broadcast'' includes, but is
not limited to, transmittal reasonably calculated to reach an audience
in the United States through an internet-based website, mobile
application, television network or radio frequency, cable or satellite
service, or telephonic message.
(e) Still or motion picture film. An agent of a foreign principal
who transmits or causes to be transmitted in the U.S. mails or by any
means or instrumentality of interstate or foreign commerce a still or
motion picture film which contains informational materials shall insert
at the beginning, or, if it is a motion picture film, at the beginning
and at the end, a statement that satisfies the requirements of section
4(b) of the Act and paragraph (a) of this section. For a still, the
conspicuous statement shall be in a font size and color that are easy
to read. For a motion picture, the conspicuous statement must be made
audibly in a cadence that is easy for listeners to comprehend, must
appear in a font size and color that are easy to read and that stand
out against the background, and must appear on the screen long enough
to be noticed, read, and understood by the viewer.
(f) Internet website or platform for which registrant has
administrative rights. Informational materials posted by a registrant
on an internet platform or website, which is hosted or controlled by
the registrant, or for which the registrant otherwise has
administrative rights, shall contain a conspicuous statement that
satisfies the requirements
[[Page 59]]
of section 4(b) of the Act and paragraph (a) of this section, in a font
size and color that are easy to read and that stands out against the
background, on the website ``home'' page and on the website ``about''
page. The conspicuous statement on these pages shall also include a
hyperlink to the registrant's filings on the Department's FARA website.
Each individual post to the website for or in the interests of the
registrant's foreign principal shall bear the conspicuous statement,
with a hyperlink to the registrant's filings on the Department's FARA
website. If the internet platform or website does not provide
sufficient space for the full conspicuous statement, as set forth in
section 4(b) of the Act and paragraph (a) of this section, the
registrant or anyone acting on the registrant's behalf must include in
each comment or post on the internet platform or website an embedded
image of the conspicuous statement on the face of the comment or post;
that image shall contain the term ``FARA,'' the registrant's
registration number, and an electronic link to the registrant's filings
on the Department's FARA website. The conspicuous statement in the
embedded image must be in a font size and color that are easy to read
and that stand out against the background.
(g) Internet website or platform for which registrant does not have
administrative rights. Informational materials posted by a registrant
on an internet platform or website, which is not hosted or controlled
by the registrant, or for which the registrant does not otherwise have
administrative rights, shall include the conspicuous statement as set
forth in section 4(b) of the Act and paragraphs (a) and (b) of this
section. Each individual post to the website for or in the interests of
the registrant's foreign principal shall bear the conspicuous
statement, with a hyperlink to the registrant's filings on the
Department's FARA website. If the internet platform or website does not
provide sufficient space for the full conspicuous statement, as set
forth in section 4(b) of the Act and paragraph (a) of this section, the
registrant or anyone acting on the registrant's behalf must include in
each comment or post on the internet platform or website an embedded
image of the conspicuous statement on the face of the comment or post
along with the term ``FARA'' with the registrant's registration number
containing an electronic link to the registrant's filings on the
Department's FARA website. The conspicuous statement in the embedded
image must be in a font size and color that are easy to read and that
stand out against the background.
(h) Defined terms. For the purpose of section 4(e) of the Act:
(1) The term ``political propaganda'' has the same meaning as
``informational materials,'' the labeling of which is governed by
paragraphs (a) through (g) of this section;
(2) Any ``request'' made to any agency or official of the
Government for or in the interests of a foreign principal includes all
communications related to that request even if the communication itself
does not contain a specific request for information or advice within
the meaning of section 4(e); for example, all communications, oral or
written, involved in scheduling a meeting to discuss the requested
information or advice must be prefaced with or accompanied by a true
and accurate statement to the effect that such a person is registered
as an agent of a foreign principal, as required by section 4(e);
Sec. 5.402 [Removed]
0
17. Remove Sec. 5.402.
0
18. Revise Sec. 5.600 to read as follows:
Sec. 5.600 Public examination of records.
Registration statements and supplements, amendments, exhibits
thereto, informational materials, and Dissemination Reports are
available to the public on the Department's FARA website. To review any
such statements or any publicly available materials filed pursuant to
FARA not available on the Department's FARA website, members of the
public shall schedule an appointment through the FARA Unit to examine
such records on an official business day, during the posted public
office hours of operation.
Sec. 5.601 [Amended]
0
19. In Sec. 5.601 amend paragraphs (a), (b), and (c) by removing
``Registration Unit'' each place it appears and adding in its place
``FARA Unit.''
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20. Revise Sec. 5.800 to read as follows:
Sec. 5.800 Ten-day filing requirement.
The 10-day filing requirement provided by section 8(g) of the Act
shall be deemed satisfied if the amendment to the registration
statement is submitted through the Department's FARA eFile system no
later than the 10th day of the period.
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21. Revise Sec. 5.1101 to read as follows:
Sec. 5.1101 Copies of the report to Congress.
Copies of the report to Congress mandated by 22 U.S.C. 621 shall be
made available to the public on the Department's FARA website free of
charge.
Dated: December 19, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-30871 Filed 12-31-24; 8:45 am]
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