Proposed Rule2021-26936
Clarification and Modernization of Foreign Agents Registration Act (FARA) Implementing Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 13, 2021
Issuing agencies
Justice Department
Abstract
The Department of Justice's National Security Division (NSD) anticipates issuing a Notice of Proposed Rulemaking (NPRM) that would amend or otherwise clarify the scope of certain exemptions, update various definitions, and make other modernizing changes to the Attorney General's Foreign Agents Registration Act (FARA) implementing regulations. The Department is issuing this Advanced Notice of Public Rulemaking (ANPRM) to solicit suggestions for any potential amendments to, or clarifications of, the current FARA implementing regulations.
Full Text
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<title>Federal Register, Volume 86 Issue 236 (Monday, December 13, 2021)</title>
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[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Proposed Rules]
[Pages 70787-70790]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26936]
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DEPARTMENT OF JUSTICE
28 CFR Part 5
[Docket No. NSD 102]
RIN 1105-AB67
Clarification and Modernization of Foreign Agents Registration
Act (FARA) Implementing Regulations
AGENCY: National Security Division, Department of Justice.
ACTION: Advance notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of Justice's National Security Division (NSD)
anticipates issuing a Notice of Proposed Rulemaking (NPRM) that would
amend or otherwise clarify the scope of certain exemptions, update
various definitions, and make other modernizing changes to the Attorney
General's Foreign Agents Registration Act (FARA) implementing
regulations. The Department is issuing this Advanced Notice of Public
Rulemaking (ANPRM) to solicit suggestions for any potential amendments
to, or clarifications of, the current FARA implementing regulations.
DATES: Electronic comments must be submitted and written comments must
be postmarked or otherwise indicate a shipping date on or before
February 11, 2022. Written comments postmarked on or before that date
will be considered timely. The electronic Federal Docket Management
System at <a href="http://www.regulations.gov">www.regulations.gov</a> will accept electronic comments until
11:59 p.m. Eastern Time on that date.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit comments, identified by the agency name and reference
RIN 1105-AB67 or NSD Docket No. 102, by one of the two methods below:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions for submitting comments.
<bullet> Mail/Commercial Courier: Paper comments that duplicate an
electronic submission are unnecessary. If you wish to submit a paper
comment in lieu of electronic submission, please direct the mail/
shipment to: Jennifer Kennedy Gellie, Chief, FARA Unit,
Counterintelligence and Export Control Section, National Security
Division, U.S. Department of Justice, 175 N Street NE, Constitution
Square, Building 3--Room 1.100, Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Jennifer Kennedy Gellie, Chief, FARA
Unit, Counterintelligence and Export Control Section, National Security
Division, U.S. Department of Justice, 175 N Street NE, Constitution
Square, Building 3--Room 1.100, Washington, DC 20002; telephone: (202)
233-0776 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
ANPRM via one of the two methods identified above and by the deadline
stated above. All comments must be submitted in the English language,
or accompanied by an English language translation.
Please note that all comments received are considered part of the
public record and made available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
The Department may withhold from public viewing information
provided in comments that it determines is offensive or may adversely
impact the privacy of a third party. For additional information, please
read the privacy notice that is available via the link in the footer of
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
To inspect the agency's public docket file in person, you must make
an appointment with the FARA Unit. Please see the FOR FURTHER
INFORMATION CONTACT paragraph above for FARA Unit contact information.
II. Background
The Foreign Agents Registration Act of 1938, 22 U.S.C. 611 et seq.
(FARA or the Act) was enacted to ensure that the government and the
American people are aware of people who are acting within this country
as agents of foreign principals and are informed about their activities
undertaken to influence public opinion or governmental action on
political or policy matters. FARA requires that people acting as agents
of foreign principals, within the meaning of the statute, make periodic
public disclosures of their agency relationship and activities, as well
as their receipts and disbursements in support of these activities.
Disclosure of the required information allows the American public and
government officials to evaluate the agents' statements and activities
with knowledge of the foreign interests they serve. The FARA Unit of
the Counterintelligence and Export Control Section (CES) in the
National Security Division (NSD) is responsible for the administration
and enforcement of FARA.
The Act gives the Attorney General the authority to issue ``rules,
regulations, and forms as he may deem necessary to carry out the
provisions'' of the Act.\1\ Under that authority, the Attorney General
has issued regulations covering a range of administrative and
enforcement functions.\2\ The regulations were last amended in 2007.
The Department is now considering amending and updating the regulations
to clarify key substantive provisions, such as the attorney and
commercial exemptions. Other changes under consideration would
modernize the regulations to clarify how they apply to social media and
electronic filing, among other things.
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\1\ See 22 U.S.C. 620; see also id. 612(f), 614(c).
\2\ See 28 CFR 5.1-5.1101.
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III. Request for Public Comments
Before issuing a NPRM with specific regulatory text for public
comment, the Department is seeking preliminary input from the public on
the regulations as a whole and in response to the specific questions
set forth below:
A. Agency
Pursuant to 22 U.S.C. 611(c), an ``agent of a foreign principal''
is ``any person who acts as an agent, representative, employee, or
servant, or any person who acts in any other capacity at the order,
request, or under the direction or control, of a foreign principal or
of a person any of whose activities are directly or indirectly
supervised, directed, controlled, financed, or subsidized in whole or
in major part by a foreign principal,'' who does any of the following:
<bullet> Engages within the United States in political activities,
such as intending to influence any U.S. Government official or the
American public regarding U.S. domestic or foreign policy or the
political or public interests of a foreign government or foreign
political party;
<bullet> Acts within the United States as a public relations
counsel, publicity agent, information service employee, or political
consultant;
[[Page 70788]]
<bullet> Solicits, collects, disburses, or dispenses contributions,
loans, money, or other things of value within the United States; or
<bullet> Represents within the United States the interests of a
foreign principal before U.S. Government officials or agencies.
In addition, 22 U.S.C. 611(p) defines ``political consultant'' to
mean ``any person who engages in informing or advising any other person
with reference to the domestic or foreign policies of the United States
or the political or public interest, policies, or relations of a
foreign country or of a foreign political party.''
Question 1: Should the Department incorporate into its regulations
some or all of its guidance addressing the scope of agency, which is
currently published as part of the FARA Unit's FAQs on its website? See
<a href="https://www.justice.gov/nsd-fara/page/file/1279836/download">https://www.justice.gov/nsd-fara/page/file/1279836/download</a>. If so,
which aspects of that guidance should be incorporated? Should any
additional guidance currently included in the FAQs, or any other
guidance, be incorporated into the regulations?
Question 2: Should the Department issue new regulations to clarify
the meaning of the term ``political consultant,'' including, for
example, by providing that this term is generally limited to those who
conduct ``political activities,'' as defined in 22 U.S.C. 611(o)?
B. Exemptions
1. Commercial Exemptions
Two of the three exemptions in 22 U.S.C. 613(d) apply to ``[a]ny
person engaging or agreeing to engage only (1) in private and
nonpolitical activities in furtherance of the bona fide trade or
commerce of such foreign principal; or (2) in other activities not
serving predominantly a foreign interest.'' In 28 CFR 5.304(b), the
word ``private'' is defined to include activities on behalf of a
foreign principal that is ``owned or controlled by a foreign
government, so long as the activities do not directly promote the
public or political interests of the foreign government.'' For
activities on behalf of state-owned enterprises, 28 CFR 5.304(c)
provides that the phrase ``not serving predominantly a foreign
interest'' includes ``political activities'' that:
<bullet> Are ``directly in furtherance of the bona fide commercial,
industrial, or financial operations of the foreign corporations'';
<bullet> Are not ``directed by a foreign government or foreign
political party''; and
<bullet> ``[D]o not directly promote the public or political
interests of a foreign government or of a foreign political party.''
Because the regulation in 5.304(c) addresses only activities on
behalf of state-owned enterprises, it does not provide guidance on
whether political activities on behalf of other foreign principals fall
within the exemption. The Department is considering issuing regulations
to address contexts not currently covered by the existing regulations.
The Department is also seeking comment on whether to revise the
existing regulations to address the scope of the exemptions, such as by
limiting the scope of the exemptions so that they would not apply if
the activities promoted--either directly or indirectly--the public or
political interests of a foreign government or foreign political party.
Question 3: Should the Department issue a regulation addressing how
22 U.S.C. 613(d)(2) applies to political activities on behalf of
foreign principals other than state-owned enterprises? If so, how
should the Department amend the regulation to address when such
activities do not serve ``predominantly a foreign interest''?
Question 4: Is the language in 28 CFR 5.304(b), (c), which provides
that the exemptions in sections 613(d)(1) and (d)(2) do not apply to
activities that ``directly promote'' the public or political interests
of a foreign government or political party, sufficiently clear? And
does that language appropriately describe the full range of activities
that are outside the scope of the exemptions because they promote such
interests, including indirectly? Should the language be clarified, and,
if so, how?
Question 5: What other changes, if any, should the Department make
to the current regulations at 28 CFR 5.304(b) and (c) relating to the
exemptions in 22 U.S.C. 613(d)(1) and (2)?
2. Exemption for Religious, Scholastic, or Scientific Pursuits
This statutory exemption, 22 U.S.C. 613(e), applies to ``[a]ny
person engaging or agreeing to engage only in activities in furtherance
of bona fide religious, scholastic, academic, or scientific pursuits or
of the fine arts.'' The regulation in 28 CFR 5.304(d) provides that
this exemption ``shall not be available to any person described therein
if he engages in political activities as defined in [22 U.S.C. 611(o)]
for or in the interests of his foreign principal.''
Question 6: Should the Department issue additional or clarified
regulations regarding this exemption to clarify the circumstances in
which this exemption applies? If so, how should those additional
regulations clarify the scope of the exemption?
3. Exemption for Persons Qualified To Practice Law
This statutory exemption, 22 U.S.C. 613(g), applies to ``[a]ny
person qualified to practice law, insofar as he engages or agrees to
engage in the legal representation of a disclosed foreign principal
before any court of law or any agency of the Government of the United
States,'' provided that for purposes of the exemption ``legal
representation does not include attempts to influence or persuade
agency personnel or officials other than in the course of judicial
proceedings, criminal or civil law enforcement inquiries,
investigations, or proceedings, or agency proceedings required by
statute or regulation to be conducted on the record.'' The exemption
applies where a person, qualified to practice law, engages or agrees to
engage in the legal representation of a disclosed foreign principal
before any court or agency of the Government of the United States. The
regulation at 28 CFR 5.306(a) provides that the exemption does not
apply to an agreement to provide legal representation to further
political activities, as defined by FARA, to influence or persuade
agency personnel or officials, other than in the course of: Judicial
proceedings; criminal or civil law enforcement inquiries,
investigations, or proceedings; or other agency proceedings required by
law to be conducted on the record. The exemption may apply to an
attorney's activities that relate to such proceedings so long as the
activities do not go beyond the bounds of normal legal representation
of a client in the matter.
Question 7: Should the Department amend 28 CFR 5.306(a) to clarify
when activities that relate to criminal, civil, or agency proceedings
are ``in the course of'' such proceedings because they are within the
bounds of normal legal representation of a client in the matter for
purposes of the exemption in 22 U.S.C. 613(g)? If so, how should the
Department amend the regulation to address that issue?
Question 8: What other changes, if any, should the Department make
to 28 CFR 5.306 to clarify the scope of the exemption in 22 U.S.C.
613(g)?
4. Additional Clarifications of Statutory Exemptions
Question 9: Are there other aspects of the statutory exemptions
that the Department should clarify, whether to make clear additional
circumstances in which registration is, or is not, required?
[[Page 70789]]
C. Inquiries Concerning Application of the Act
Any present or prospective agent of a foreign principal, or the
agent's attorney, may request from the Assistant Attorney General for
National Security a statement of present enforcement intentions (also
known as a ``Rule 2'' or an ``advisory opinion'') as to whether the
agent has an obligation to register under FARA. These requests must be
made in writing to the FARA Unit. The subject of the request must be an
actual event, not a hypothetical situation, and may not involve only
past conduct. Any request must be specific and contain in detail all
relevant and material information, including the names of the potential
agents and principals, the nature of their activities, and a copy of
any existing or proposed contract. Responding to each request involves
significant attorney research and analysis to address fully the facts
presented in the request.
Question 10: Should the Department revise 28 CFR 5.2(i) to allow
the National Security Division longer than 30 days to respond to a Rule
2 request, with the time to begin on the date it receives all of the
information it needs to evaluate the request? If so, what is a
reasonable amount of time?
Question 11: Should the Department include with its published Rule
2 advisory opinions the corresponding request, with appropriate
redactions to protect confidential commercial or financial information,
so that the public may better understand the factual context of the
opinion?
Question 12: What other changes, if any, should the Department make
to the current process for using advisory opinions pursuant to 28 CFR
5.2?
D. Labeling Informational Materials
22 U.S.C. 614(b) requires that any informational materials that are
or will be disseminated to two or more persons by an agent of a foreign
principal contain a ``conspicuous statement'' that the materials are
distributed by an agent of a foreign principal and that additional
information is on file with the U.S. Department of Justice. Section
614(b) also provides that the ``Attorney General may by rule define
what constitutes a conspicuous statement.'' The regulations
implementing this statutory requirement were last amended in 2003 and
do not reflect the challenges of labeling informational materials
disseminated through various online media platforms.
Question 13: Should the Department define by regulation what
constitutes ``informational materials''? If so, how should it define
the term?
Question 14: What changes, if any, should the Department make to
the current regulation, 22 CFR 5.402, relating to labeling
informational materials to account for the numerous ways informational
materials may appear online? For example, how should the Department
require conspicuous statements on social media accounts or in other
communications, particularly where text space is limited?
Question 15: Should the Department amend the current regulation, 22
CFR 5.402(d), relating to ``labeling informational materials'' that are
``televised or broadcast'' by requiring that the conspicuous statement
appear at the end of the broadcast (as well as at the beginning), if
the broadcast is of sufficient duration, and at least once-per hour for
each broadcast with a duration of more than one hour, or are there
other ways such information should be labeled?
Question 16: Should any changes to regulations relating to the
labeling of ``televised or broadcast'' informational materials also
address audio and/or visual informational materials carried by an
online provider? And, if so, should the regulations addressing labeling
of such audio and/or visual information materials be the same as for
televised broadcasts or should they be tailored to online materials;
and, if so, how?
Question 17: Should the Department amend 22 CFR 5.402 to ensure
that the reference to the ``foreign principal'' in the conspicuous
statement includes the country in which the foreign principal is
located and the foreign principal's relation, if any, to a foreign
government or foreign political party; and, if so, how should the
regulations be clarified in this regard?
E. E-Filing
The Department now uses an e-File system with web-fillable forms.
This system makes it easier for new registrants to keep their
registrations current and helps the public search for and download
information about FARA registrants.
Questions 18: What changes, if any, should the Department make to
its regulations to account for the e-File system that was adopted after
the regulations were last updated in 2007?
F. Miscellaneous Changes
While administering FARA, the FARA Unit has found that being able
to contact agents via business telephone numbers and business email
addresses promotes the efficient administration of FARA. Neither the
Act nor the current regulations requires agents to provide this
information.
Question 19: Should the Department amend 28 CFR 5.1 to require--
separate from the registration statements, supplements, and related
documentation--that agents provide their business telephone numbers and
business email addresses to facilitate better communications with the
FARA Unit?
Comments that will provide the most assistance to the Department in
issuing a NPRM will be those that answer one or more of the specific
questions asked; explain what changes, if any, should be made to the
regulations and why; and support that position with accompanying data,
information, or legal authority.
In addition to providing comments on the specific nineteen
questions listed above, the Department is also seeking input from the
public on any other aspect of the current FARA regulatory structure
that the public believes should involve the issuance, amendment, or
rescinding of any regulation not otherwise identified above.
IV. Regulatory Certifications
This ANPRM has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), The Principles of Regulation, in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation. This ANPRM is not a ``significant''
regulatory action pursuant to Executive Order 12866 and, accordingly,
the Office of Management and Budget (OMB) has not reviewed it.
This action does not propose or impose any requirements; rather,
this ANPRM is being published to seek information and comments from the
public about possible revisions and amendments to FARA's current
regulatory scheme.
The requirements of the Regulatory Flexibility Act (RFA) do not
apply to this action because, at this stage, it is an ANPRM and not a
``rule'' as defined in 5 U.S.C. 601.
Following review of the comments received in response to this
ANPRM, if NSD proceeds with a notice or notices of proposed rulemaking
regarding this matter, the Department will conduct all relevant
analyses as required by statute or Executive Order.
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Dated: December 7, 2021.
Matthew G. Olsen,
Assistant Attorney General, National Security Division.
[FR Doc. 2021-26936 Filed 12-10-21; 8:45 am]
BILLING CODE 4410-PF-P
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