Amending and Clarifying Foreign Agents Registration Act Regulations, 40-59 [2024-30871]

Agencies

• Department of Justice

[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

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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

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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

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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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    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \25\ 22 U.S.C. 613(d)(1), (2).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \28\ See 22 U.S.C. 613(g).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \32\ 22 U.S.C. 614(b).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ The ``Attorney General may by rule define what constitutes 
a conspicuous statement.'' 22 U.S.C. 614(b).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \35\ See 28 CFR 5.2.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.''
0
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.
0
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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