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The Department of Justice first expressed an intent to revise its FARA regulations back in December 2021 when it solicited comments from the public on several FARA-related topics.  The Department finally took the next step in that process after a three-year wait by posting a Notice of Proposed Rulemaking this past week.  Here are the notable changes proposed by the Department in the Notice:

• The exemption for “activities not serving predominantly a foreign interest” exemption would undergo drastic changes that could profoundly affect the scope of FARA. The exemption at 22 U.S.C. § 613(d)(2) for “activities not serving predominantly a foreign interest” has been central to FARA analyses because it delineates in many instances between non-registrable representations of foreign private interests and registrable representations of foreign governmental/political interests.  The Department proposes a wholesale change, under which the analysis would shift to a “totality of the circumstances” approach that would make the exemption unavailable whenever the Department determines that a foreign interest “predominates,” regardless of whether that foreign interest is a private interest or a governmental/political interest.  This proposal has potentially broad implications for many organizations operating in the United States, including multinational corporations and U.S. nonprofits that accept grants from abroad.  If this proposal is ultimately adopted, it would have the effect of requiring FARA registration from many who are working with private foreign interests, even where those interests overlap with the priorities and preferences of domestic individuals and organizations.  The comments submitted in response to the Notice will likely focus intently on this proposal.
• “Informational materials” would be defined for the first time and be subject to newly specific labeling requirements. The Department proposes in the Notice to: (1) define the term “informational materials” for the first time, with the proposed definition incorporating the well-known concept of “political activities” (i.e. efforts intended to influence U.S. policy or public opinion); and (2) require FARA agents to include their registration number and their foreign principal’s country in the legally required disclaimer on all “informational materials.”  The Department also proposes new specific disclaimer placement standards that depend on the method of dissemination:    
  • Op-eds and similar articles—Disclaimer would be placed in the author’s byline, signature block, or bio;
  • Audio-only or audio-visual materials distributed via television, radio, text, website, digital application, or motion picture—Disclaimer would be placed at the beginning and end of the informational materials;
  • Website and social media profiles—Disclaimer would include a link to the agent’s FARA registration and be placed on the “home” and “about” pages of any website or platform for which the agent has administrative rights; and
  • Social media posts—Disclaimer would include a link to the agent’s FARA registration and be placed in each social media post disseminated on the foreign principal’s behalf.
• Tourism promotion would no longer trigger FARA registration. The Department has maintained since the 1980s that tourism promotion is a registrable activity, but it has apparently “reconsidered that position” and “now believes that the promotion of recreational and business tourism is too attenuated” to foreign governmental and political interests to require registration.  The Department proposes a new subsection under 28 C.F.R. § 5.304(b) that would treat “transparently promoting bona fide recreational or business travel to a foreign country” as “private and nonpolitical activities” that are exempt under the “commercial activities” exemption at 22 U.S.C. § 613(d)(1).  This would be a significant change to FARA, mostly because tourism promoters are frequent registrants that could presumably deregister if the Department’s proposal is adopted.
• The “legal representation” exemption would allow a lawyer to provide information about a legal proceeding to the press. The Department proposes to exempt lawyers from FARA registration to the extent that they provide information about a “proceeding, inquiry, or investigation” during its pendency to the press and other persons.  This proposal solidifies the Department’s expansion of the “legal representation” exemption at 22 U.S.C. § 613(g) to allow for a broader range of activities outside a formal legal proceeding.  Please note that the proposal would not allow an attorney to engage in “political activities”—i.e. “seeking to persuade persons … such as the public or Congress … to adopt or change foreign or domestic U.S. policy.” 

Additionally, the Department indicated in the Notice that it is proposing no new changes to its regulatory definitions for “agent” and “political consultant,” no new language in the “legal representation” exemption to address the eligibility of non-attorneys, and no change to the deadline for its issuance of FARA advisory opinions.  Notably, the Department also clarified that a past remark suggesting that the Lobbying Disclosure Act exemption at 22 U.S.C. § 613(h) “might not apply where a foreign government or political party is one of multiple principal beneficiaries of lobbying activities” now no longer “reflect[s] the present enforcement intentions of the Department.” 

The Notice has not yet been published in the Federal Register.  Once the Notice is published in the Federal Register, the public will have 60 days to respond with comments.

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