Following its efforts in recent years to enforce the Foreign Agents Registration Act of 1938 (22 U.S.C. 611 et seq. (FARA)) more rigorously and transparently, for the first time in nearly 15 years the U.S. Department of Justice (Justice) announced that it intends to make changes to FARA’s implementing regulations as part of a broader modernization effort by the FARA Unit.  The FARA Unit is responsible for the administration and enforcement of FARA, which generally applies to agents of non-U.S. governments, non-U.S. political parties, and other non-U.S. persons.

FARA requires persons engaged in a broad range of activities within the United States on behalf of certain non-U.S. persons to publicly disclose those activities in filings with Justice and to comply with reporting and other compliance obligations, unless an exemption from disclosure applies.  Specifically, FARA requires an “agent of a foreign principal” to register activities directed or controlled by non-U.S. principals where such activities involve any of the following and no exemption is available:

• Engages within the United States in political activities, such as intending to influence any U.S. Government official or the American public regarding U.S. domestic or foreign policy or the political or public interests of a non-U.S. government or non-U.S. political party;

• Acts within the United States as a public relations counsel, publicity agent, information service employee, or political consultant;

• Solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value within the United States; or

• Represents within the United States the interests of a non-U.S. principal before U.S. Government officials or agencies.

The FARA Unit has significantly expanded its enforcement of the statute, as Justice officials have acknowledged.  Since the 2016 presidential election, Justice has embarked upon a sustained campaign of promoting and enforcing compliance with FARA, including enforcing registration requirements, inspecting the files of current registrants, and initiating multiple high-profile criminal prosecutions in instances of alleged “willful” violations of the statute. 

In the context of this increased enforcement, Justice is now seeking comments on efforts to reform and modernize Justice’s FARA regulations, including the scope and availability of certain exemptions from registration.  Justice’s proposed rulemaking comes after the U.S. Congress has failed to pass various FARA reform legislative proposals introduced over the last decade.  The FARA regulations were last updated in 2007. 

On December 13, Justice published an Advanced Notice of Public Rulemaking (ANPRM) in the Federal Register in order to “solicit suggestions for any potential amendments to, or clarifications of, the current FARA implementing regulations,” which will  be announced in a subsequent Notice of Proposed Rulemaking.  In a December 8 press release announcing the forthcoming ANPRM, Justice explained that “[m]odernization of FARA’s implementing regulations will further facilitate the Department’s focus on FARA enforcement to ensure transparency in U.S. democratic processes.” 

At an FARA annual conference held on December 9, Jennifer Gellie, Chief of the FARA Unit, asked attendees to use the ANPRM process to provide input on any aspect of the current FARA regulatory structure.  From Ms. Gellie’s remarks, it is clear that the FARA Unit views the forthcoming rulemaking as a key milestone in reforming and modernizing the FARA regulations.  

The ANPRM solicits feedback on the FARA regulations as a whole—even those not specified in the ANPRM—and in response to 19 specific questions.  In particular, the ANPRM solicits comment on key provisions of the statute, such as including those relating to the scope of agency; the 1) attorney, 2) commercial, and 3) religious, scholastic, or scientific pursuits exemptions; and the applicability of the regulations to social media and electronic filing and labelling of so-called “informational materials.”  The ANPRM also poses questions about inquiries concerning application of FARA, otherwise known as advisory opinions.

Next steps

The deadline for filing comments on the ANPRM is February 11, 2022.  Based upon the number and breadth of the questions posed in the ANPRM, the scope of the potential changes to the FARA regulations could significantly impact the operation of the statute’s registration and ongoing compliance obligations.  Hogan Lovells would be pleased to assist you with submitting comments in response to the ANPRM.  This is a unique and potentially very consequential opportunity for registrants and would-be registrants to help shape the implementation of FARA.

Authored by Aleksandar Dukic, T. Weymouth, Ari Fridman, and Patrick de Laperouse.