Amending and Clarifying Foreign Agents Registration Act Regulations

DEPARTMENT OF JUSTICE <CFR>28 CFR Part 5</CFR> <DEPDOC>[Docket No. NSD 102; AG Order No. 6121-2024]</DEPDOC> <RIN>RIN 1124-AA00</RIN> <SUBJECT>Amending and Clarifying Foreign Agents Registration Act Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of the Attorney General, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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 <E T="03">https://www.regulations.gov</E> will accept electronic comments until 11:59 p.m. Eastern Time on that date. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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: • <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions for submitting comments. • <E T="03">Mail/Commercial Courier:</E> 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. <E T="03">Instructions:</E> All submissions received must include the agency name and docket number or Regulatory Information Number (“RIN”) for this rulemaking. Paper comments that duplicate an electronic submission are unnecessary. All comments received will be posted without change to <E T="03">https://www.regulations.gov,</E> 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 <E T="02">SUPPLEMENTARY INFORMATION</E> section of this document. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Public Participation</HD> 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 <E T="03">https://www.regulations.gov.</E> 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 <E T="03">https://www.regulations.gov.</E> 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 <E T="02">FOR FURTHER INFORMATION CONTACT</E> paragraph above for FARA Unit contact information. <HD SOURCE="HD1">II. Background</HD> The Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611 <E T="03">et seq.</E> (“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. <E T="03">See</E> 22 U.S.C. 620; <E T="03">see also id.</E> 612(f), 614(c). Under that authority, the Attorney General has issued regulations covering a range of administrative and enforcement functions. <E T="03">See</E> 28 CFR 5.1-5.1101. The regulations were last amended in 2007. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See</E> 72 FR 10068 (Mar. 7, 2007). </FTNT> <HD SOURCE="HD1">III. Public Comments and Discussion of Proposed Changes</HD> 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. <SU>2</SU> <FTREF/> 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. <SU>3</SU> <FTREF/> 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. <FTNT> <SU>2</SU>  86 FR 70787. </FTNT> <FTNT> <SU>3</SU>  One of these comments was submitted twice. </FTNT> 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. <HD SOURCE="HD2">A. Agency</HD> <E T="03">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</E> U.S. Dep't of Just., <E T="03">FARA Frequently Asked Questions</E> (Apr. 10, 2023), <E T="03">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?</E> 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”). <SU>4</SU> <FTREF/> 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 <E T="03">Scope of Agency</E> 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 “ <E T="03">some level of power over the agent</E> and must have <E T="03">some sense of obligation to achieve the principal's requests.</E> ” 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 <FTNT> <SU>4</SU>  U.S. Dep't of Just., <E T="03">The Scope of Agency Under FARA</E> (May 2020), <E T="03">https://www.justice.gov/media/1070276/dl?inline.</E> </FTNT> <EXTRACT> <FP> 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 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 2004.34. </FP> </EXTRACT> Anothe ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 145k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━