Clarification and Modernization of Foreign Agents Registration Act (FARA) Implementing Regulations, 70787-70790 [2021-26936]

Download as PDF Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Proposed Rules FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF JUSTICE 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: 28 CFR Part 5 [Docket No. NSD 102] RIN 1105–AB67 Clarification and Modernization of Foreign Agents Registration Act (FARA) Implementing Regulations National Security Division, Department of Justice. ACTION: Advance notice of proposed rulemaking; request for comments. AGENCY: I. Public Participation 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. SUMMARY: Electronic comments must be submitted and written comments must be postmarked or otherwise indicate a shipping date on or before February 11, 2022. Written comments postmarked on or before that date will be considered timely. The electronic Federal Docket Management System at www.regulations.gov will accept electronic comments until 11:59 p.m. Eastern Time on that date. ADDRESSES: If you wish to provide comments regarding this rulemaking, you must submit comments, identified by the agency name and reference RIN 1105–AB67 or NSD Docket No. 102, by one of the two methods below: • Federal eRulemaking Portal: https://www.regulations.gov. Follow the website instructions for submitting comments. • Mail/Commercial Courier: Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/shipment to: Jennifer Kennedy Gellie, Chief, FARA Unit, Counterintelligence and Export Control Section, National Security Division, U.S. Department of Justice, 175 N Street NE, Constitution Square, Building 3— Room 1.100, Washington, DC 20002. khammond on DSKJM1Z7X2PROD with PROPOSALS DATES: VerDate Sep<11>2014 16:22 Dec 10, 2021 Jkt 256001 Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this ANPRM via one of the two methods identified above and by the deadline stated above. All comments must be submitted in the English language, or accompanied by an English language translation. Please note that all comments received are considered part of the public record and made available for public inspection at https:// www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. The Department may withhold from public viewing information provided in comments that it determines is offensive or may adversely impact the privacy of a third party. For additional information, please read the privacy notice that is available via the link in the footer of https:// www.regulations.gov. To inspect the agency’s public docket file in person, you must make an appointment with the FARA Unit. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for FARA Unit contact information. II. Background The Foreign Agents Registration Act of 1938, 22 U.S.C. 611 et seq. (FARA or the Act) was enacted to ensure that the government and the American people are aware of people who are acting within this country as agents of foreign principals and are informed about their activities undertaken to influence public opinion or governmental action on political or policy matters. FARA requires that people acting as agents of foreign principals, within the meaning of the statute, make periodic public disclosures of their agency relationship and activities, as well as their receipts and disbursements in support of these activities. Disclosure of the required information allows the American public PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 70787 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. III. Request for Public Comments Before issuing a NPRM with specific regulatory text for public comment, the Department is seeking preliminary input from the public on the regulations as a whole and in response to the specific questions set forth below: A. Agency Pursuant to 22 U.S.C. 611(c), an ‘‘agent of a foreign principal’’ is ‘‘any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal,’’ who does any of the following: • Engages within the United States in political activities, such as intending to influence any U.S. Government official or the American public regarding U.S. domestic or foreign policy or the political or public interests of a foreign government or foreign political party; • Acts within the United States as a public relations counsel, publicity agent, information service employee, or political consultant; 1 See 2 See E:\FR\FM\13DEP1.SGM 22 U.S.C. 620; see also id. 612(f), 614(c). 28 CFR 5.1–5.1101. 13DEP1 70788 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Proposed Rules • Solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value within the United States; or • Represents within the United States the interests of a foreign principal before U.S. Government officials or agencies. In addition, 22 U.S.C. 611(p) defines ‘‘political consultant’’ to mean ‘‘any person who engages in informing or advising any other person with reference to the domestic or foreign policies of the United States or the political or public interest, policies, or relations of a foreign country or of a foreign political party.’’ Question 1: Should the Department incorporate into its regulations some or all of its guidance addressing the scope of agency, which is currently published as part of the FARA Unit’s FAQs on its website? See https://www.justice.gov/ nsd-fara/page/file/1279836/download. If so, which aspects of that guidance should be incorporated? Should any additional guidance currently included in the FAQs, or any other guidance, be incorporated into the regulations? Question 2: Should the Department issue new regulations to clarify the meaning of the term ‘‘political consultant,’’ including, for example, by providing that this term is generally limited to those who conduct ‘‘political activities,’’ as defined in 22 U.S.C. 611(o)? B. Exemptions khammond on DSKJM1Z7X2PROD with PROPOSALS 1. Commercial Exemptions Two of the three exemptions in 22 U.S.C. 613(d) apply to ‘‘[a]ny person engaging or agreeing to engage only (1) in private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest.’’ In 28 CFR 5.304(b), the word ‘‘private’’ is defined to include activities on behalf of a foreign principal that is ‘‘owned or controlled by a foreign government, so long as the activities do not directly promote the public or political interests of the foreign government.’’ For activities on behalf of state-owned enterprises, 28 CFR 5.304(c) provides that the phrase ‘‘not serving predominantly a foreign interest’’ includes ‘‘political activities’’ that: • Are ‘‘directly in furtherance of the bona fide commercial, industrial, or financial operations of the foreign corporations’’; • Are not ‘‘directed by a foreign government or foreign political party’’; and • ‘‘[D]o not directly promote the public or political interests of a foreign VerDate Sep<11>2014 16:22 Dec 10, 2021 Jkt 256001 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 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 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? E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Proposed Rules 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? khammond on DSKJM1Z7X2PROD with PROPOSALS 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 VerDate Sep<11>2014 16:22 Dec 10, 2021 Jkt 256001 ‘‘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 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 70789 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. E:\FR\FM\13DEP1.SGM 13DEP1 70790 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Proposed Rules 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 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA–R05–RCRA–2021–0389; FRL–9191– 01–R5] Michigan: Proposed Authorization of State Hazardous Waste Management Program Revisions Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: Michigan has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA has reviewed Michigan’s application and has determined that these changes satisfy all requirements needed to qualify for final authorization. Therefore, we are proposing to authorize the State’s changes. EPA seeks public comment prior to taking final action. DATES: Comments must be received on or before January 27, 2022. ADDRESSES: Submit your comments by one of the following methods: • Federal eRulemaking Portal: https://www.regulations.gov. Follow the on-line instructions for submitting comments. • Email: Mullins.Angela@epa.gov. • Instructions: EPA must receive your comments by January 27, 2022. Direct your comments to Docket ID Number EPA–R05–RCRA–2021–0389. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov, or email. The federal www.regulations.gov website is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:22 Dec 10, 2021 Jkt 256001 If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. (For additional information about EPA’s public docket, visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm). Docket: All documents in the docket are listed in the www.regulations.gov, index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov, or in hard copy. FOR FURTHER INFORMATION CONTACT: Angela Mullins, RCRA C&D Section, Land, Chemicals, and Redevelopment Division, U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, LL–17J, Chicago, IL 60604. Angela Mullins can be reached by telephone at (312) 886–4237 or via email at mullins.angela@epa.gov. SUPPLEMENTARY INFORMATION: regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA will implement those requirements and prohibitions in Michigan including the issuance of new permits implementing those requirements, until the State is granted authorization to do so. A. Why are revisions to state programs necessary? If Michigan is authorized for the changes described in Michigan’s authorization application, these changes will become part of the authorized State hazardous waste program and will therefore be federally enforceable. Michigan will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA would maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to: • Conduct inspections, and require monitoring, tests, analyses and reports; • Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and • Take enforcement actions regardless of whether the State has taken its own actions. States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA’s regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279. New Federal requirements and prohibitions imposed by Federal PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 B. What decisions has EPA made in this rule? On April 8, 2021, Michigan submitted a complete program revision application seeking authorization of changes to its hazardous waste program that correspond to certain Federal rules promulgated between January 13, 2015 and January 3, 2018 (also known as RCRA Clusters XXV and XXVI). EPA concludes that Michigan’s application to revise its authorized program meets all of the statutory and regulatory requirements established under RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant Michigan final authorization to operate its hazardous waste program with the changes described in the authorization application, and as outlined below in Section G of this document. Michigan has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of HSWA, as discussed above. C. What is the effect of this proposed authorization decision? E:\FR\FM\13DEP1.SGM 13DEP1

Agencies

Department of Justice

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



[[Page 70787]]

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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.

-----------------------------------------------------------------------

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

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

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

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

SUPPLEMENTARY INFORMATION:

I. Public Participation

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

II. Background

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

    \1\ See 22 U.S.C. 620; see also id. 612(f), 614(c).
    \2\ See 28 CFR 5.1-5.1101.
---------------------------------------------------------------------------

III. Request for Public Comments

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

A. Agency

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

[[Page 70788]]

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

B. Exemptions

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

[[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.


[[Page 70790]]


    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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