Justice Division Points ANPRM to Modernize and Make clear FARA and Seeks Feedback | Wiley Rein LLP
On December 13, 2021, the National Security Division of the US Department of Justice (DOJ) released an advance notice of the proposed regulation (ANPRM) and requested public comments to clarify and modernize the implementing rules of the Foreign Agents Registration Act (FARA). Comments on the ANPRM are due on Tuesday, February 11, 2022.
FARA is a disclosure law that aims to promote transparency in, among other things, politics, media and public relations in the USA with regard to foreign influences. In general, FARA requires any “foreign client agent” engaged in certain political or quasi-political activities in the United States to register as such with the DOJ and regularly – and publicly – disclose certain details of that agency relationship with the foreign client.
The ANPRM notes that the DOJ “is considering changing and updating the regulations to clarify material substantive provisions such as legal and commercial agent exemptions” and other changes to “modernize the regulations to clarify how.” they are applicable to social media and electronic submissions ”under Others.
The DOJ has prioritized FARA enforcement in recent years and the ANPRM advises that FARA remains a priority for the DOJ. In 2016, the DOJ’s Inspector General reviewed the ministry’s FARA enforcement and found that FARA registrations had declined sharply since the 1990s and the FARA unit rarely carried out enforcement actions. The Inspector General’s report sparked, at least in part, Congressional hearings, legislative reform efforts, and changes within the DOJ, including several high-level prosecutions and civil suits. With the ANPRM, the DOJ has initiated the process of revising the FARA regulations for the first time since 2007.
The ANPRM contains nineteen specific public comment questions covering the following topics: Authority, Exemptions, Rule 2 Opinions, Leaflet Labeling, E-Submission, and Representative Contact Information Requirements. The questions are listed in full below.
The DOJ notes that the most helpful comments “are those who answer one or more of the specific questions asked; explain what changes, if any, should be made to the rules and why; and to support that position with accompanying data, information, or legal authority. ”In addition to comments on the specific questions, the DOJ welcomes contributions“ on any other aspect of the current FARA regulatory structure that the public believes will grant change or repeal a regulation ”.[.]”
Question 1: Should the department include some or all of its guidelines on the scope of the Agency in its regulations, which are currently published as part of the FARA unit FAQs on its website? See https://www.justice.gov/nsd-fara/page/file/1279836/download. If so, what aspects of these guidelines should be considered? Should additional guidance that is currently in the FAQs or any other guidance be included in the regulations?
Question 2: Should the Department adopt new regulations to clarify the meaning of the term “political advisor”, for example by providing that this term is generally limited to those who have “political activities” within the meaning of 22 USC 611 (o) ?
Question 3: Should the department issue an ordinance governing how 22 USC 613 (d) (2) applies to political activities on behalf of non-state-owned foreign clients? If so, how should the ministry amend the regulation if such activities are not “predominantly in a foreign interest”?
Question 4: Is the language in 28 CFR 5.304 (b), (c) which provides that the exceptions in Sections 613 (d) (1) and (d) (2) do not apply to activities that “directly promote “’Are the public or political interests of a foreign government or political party sufficiently clear? And does this language adequately describe the full range of activities that are outside the scope of the exemptions because they promote such interests, including indirectly? Should the language be clarified and if so, how?
Question 5: What other changes, if any, should the Department make to the current regulations in 28 CFR 5.304 (b) and (c) in relation to the exemptions in 22 USC 613 (d) (1) and (2)?
Question 6: Should the department issue additional or clarifying regulations for this exemption in order to clarify under which circumstances this exemption applies? If so, how should these additional rules clarify the scope of the exception?
Question 7: Should the Department amend 28 CFR 5.306 (a) to clarify when activities related to criminal, civil, or government proceedings are “ongoing” because they are for a customer’s normal legal representation in the matter the purposes of exemption under 22 USC 613 (g)? If so, how should the department amend the regulation to address this issue?
Question 8: What other changes, if any, should the Department make to 28 CFR 5.306 to clarify the scope of the exception in 22 USC 613 (g)?
Question 9: Are there other aspects of the statutory exemptions that the Department should clarify whether or not to clarify additional circumstances under which registration is required?
Inquiries about the application of the law
Question 10: Should the Department revise 28 CFR 5.2 (i) to allow the National Security Division more than 30 days to respond to a Rule 2 request, the period begins on the date it receives all of the information, which is it to evaluate the request? If so, what is a reasonable time?
Question 11: Should the ministry include its published Rule 2 opinion with the relevant application and appropriate editorial staff to protect confidential business or financial information so that the public can better understand the factual context of the opinion? Question 12: What other changes, if any, should the Department make to the current 28 CFR 5.2 Use of Expertise Procedure?
Identification of information materials
Question 13: Should the Ministry define by regulation what “information material” is? If so, how should the term be defined?
Question 14: What changes, if any, should the Department make to the current Regulation 22 CFR 5.402 regarding the labeling of informational materials to reflect the wide variety of ways in which informational materials can appear online? For example, how should the department require eye-catching statements on social media accounts or in other communications, especially when text space is limited?
Question 15: Should the Department amend the current Ordinance 22 CFR 5.402 (d) on “Identification of Information Material That Is Televised or Aired” by requiring that the prominent statement appear at the end of the program (as well as at the beginning), if the broadcast is of sufficient duration, at least once an hour for each broadcast over an hour in duration, or are there other ways to flag such information?
Question 16: Should changes to the rules for labeling “television or radio” information materials also apply to audio and / or visual information materials from an online provider? If so, should the rules for labeling such audio and / or visual information materials be the same as those for television broadcasts or should they be tailored for online materials? and if so how?
Question 17: Should the Department change 22 CFR 5.402 to ensure that the reference to “foreign principal” in the suspicious statement reflects the country in which the foreign principal is located and the foreign principal’s relationship, if any, to a includes foreign government? or foreign political party; and if so, how are the regulations to be specified in this regard?
Question 18: What changes, if any, should the department make to its rules to take into account the e-filing system adopted after the rules were last updated in 2007?
Question 19: Should the division change 28 CFR 5.1 to require agents to provide their business phone numbers and business email addresses separately from registration statements, amendments, and related records in order to better communicate with the FARA unit enable?