[Federal Register Volume 64, Number 131 (Friday, July 9, 1999)] [Proposed Rules] [Pages 37065-37067] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-16941] [[Page 37065]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Part 5 [AG Order No. 2229-99] RIN 1105-AA45 Foreign Agents Registration Act AGENCY: Department of Justice. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Department of Justice proposes to amend its existing regulations implementing the Foreign Agents Registration Act of 1938, as amended (FARA or the Act). The proposed rule would establish new regulations needed as a result of the passage of the Lobbying Disclosure Act of 1995 (LDA) and the Lobbying Disclosure Technical Amendments Act of 1998 (LDTAA), both of which amended FARA. The proposed regulations clarify the scope of the amended Act and some exemptions to the Act, and make technical amendments to existing regulations. DATES: Written comments must be submitted on or before September 7, 1999. ADDRESSES: Please address all written comments concerning this proposed rule to Marshall R. Williams, Chief, Registration Unit, Internal Security Section, Criminal Division, United States Department of Justice, Washington, DC 20530. FOR FURTHER INFORMATION CONTACT: Marshall R. Williams, Chief, Registration Unit or Heather H. Hunt, Attorney, Registration Unit on (202) 514-1216 or by facsimile on (202) 514-2836. These are not toll- free numbers. SUPPLEMENTARY INFORMATION: Under the Foreign Agents Registration Act of 1938 (FARA or the Act), 22 U.S.C. 611-621, agents of foreign principals are required to register with the Department of Justice in order to make periodic public disclosure of their relationship with the foreign principal, activities on behalf of the foreign principal, and receipts and disbursements in support of these activities. In the Lobbying Disclosure Act of 1995, Public Law 104-65 (LDA), and the Lobbying Disclosure Technical Amendments Act of 1998, Public Law 105-166 (LDTAA), Congress amended FARA in several respects. First, Congress generally narrowed the scope of FARA to agents of foreign governments and foreign political parties. Under new section 3(h) of FARA, 22 U.S.C. 613(h), agents of foreign principals other than foreign governments or foreign political parties need not register under FARA if such agents engage in lobbying activities and register under the LDA. Second, Congress repealed section 1(q), 22 U.S.C. 611(a), which had provided a safe harbor specifying circumstances in which agents of multinational corporations would be exempt from registration under section 3(d)(2) of the Act, 22 U.S.C. 613(d)(2). When Congress authorized registration under the LDA rather than FARA for lobbying activities on behalf of foreign principals other than foreign governments and foreign political parties, section 1(q) became largely unnecessary. In addition, in the LDA Congress clarified the applicability of an exemption in section 3(g), 22 U.S.C. 613(g), for legal representation of a foreign principal in certain proceedings. Finally, Congress substituted the term ``informational materials'' for the term ``political propaganda'' throughout FARA, except in section 4(e), 22 U.S.C. 614(e), which concerns the dissemination of materials on behalf of the foreign principal, and in section 11, 22 U.S.C. 621, which concerns the filing of a semi-annual report with Congress. These amendments require changes in regulations implementing, among others, sections 3(d)(2), 3(g), 3(h) and 4 of FARA. First, this proposed rule clarifies the reach of section 3(d)(2) in light of the repeal of section 1(q) of FARA. Section 3(d)(2) exempts from registration under FARA activities of a political nature ``not serving predominantly a foreign interest.'' Under the rule, activities of an agent on behalf of a foreign commercial interest, even if the activities are political in nature and are directed or controlled by a foreign government or foreign political party, do not require registration under FARA because such activities do not ``serve predominantly a foreign interest'' for purposes of 3(d)(2). However, the new regulation clarifies that even after the deletion of section 1(q), any person, including a foreign or domestic corporation, who engages in political activities, not of a commercial nature, on behalf of a foreign government or foreign political party is required to register under FARA, as these activities will ``serve predominantly a foreign interest'' and thus not be exempt under section 3(d)(2). Second, the rule clarifies the circumstances in which agents of foreign principals, other than foreign governments or foreign political parties, can claim the new exemption provided in section 3(h), and clarifies the reach of the revised ``attorneys' exemption'' in section 3(g). In addition, the proposed rule strikes the term ``political propaganda'' wherever it appears in the regulations and substitutes the LDA term, ``informational materials.'' Finally, the rule makes certain technical amendments to the existing regulations to delete reference to other repealed sections of the Act and to enable the Registration Unit to more effectively administer the statute by allowing for electronic filing in the future. Certifications and Determinations The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this proposed rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities. The rule primarily affects those persons required to register pursuant to FARA, currently approximately 525 primary registrants and 2,464 individual short form registrants. This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that it does not constitute ``significant regulatory action'' under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and accordingly it has not been reviewed by the Office of Management and Budget. In addition, the Department of Justice certifies that this rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. The rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Furthermore, this 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 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. Finally, this rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on [[Page 37066]] distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. List of Subjects in 28 CFR Part 5 Aliens, Foreign relations, Reporting and recordkeeping requirements, Security measures. Accordingly, the Department of Justice proposes to amend part 5 of title 28 of the Code of Federal Regulations, chapter I, as follows: PART 5--ADMINISTRATION AND ENFORCEMENT OF FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED 1. The authority citation for part 5 continues to read as follows: Authority: 28 U.S.C. 509, 510; section 1, 56 Stat. 248, 357 (22 U.S.C. 620); title I, Pub. L. 102-395, 106 Stat. 1828, 1831 (22 U.S.C. 612 note). Sec. 5.5 [Amended] 2. a. Amend Sec. 5.5 in paragraph (d)(10) by adding the words ``informational materials,'' following ``reports,''. b. Amend Sec. 5.5 in paragraph (d)(11) by adding the words ``informational materials,'' following ``reports,''. Sec. 5.100 [Amended] 3. a. Amend Sec. 5.100 in paragraph (c) by removing ``1 (q),''. b. Amend Sec. 5.100 in paragraph (d) by removing ``1 (q),''. Sec. 5.200 [Amended] 4. Amend Sec. 5.200 in paragraph (b) by removing the words ``Form OBD-63'' and adding, in their place, the words ``a form provided by the Registration Unit''. Sec. 5.201 [Amended] 5. a. Amend Sec. 5.201 in paragraph (a)(1) by removing the words ``Form OBD-67'' and adding, in their place, the words ``a form provided by the Registration Unit''. b. Amend Sec. 5.201 in paragraph (a)(2) by removing the words ``Form OBD-65'' and adding, in their place, the words ``a form provided by the Registration Unit''. Sec. 5.202 [Amended] 6. a. Amend Sec. 5.202 in paragraph (b) by adding the work ``registrable'' before the word ``activity''. b. Amend Sec. 5.202 in paragraph (e) by removing the words ``Form OBD-66'' and adding, in their place, the words ``a form provided by the Registration unit''. Sec. 5.203 [Amended] 7. Amend $5.203 in paragraph (a) by removing the words ``Form OBD- 64'' and adding, in their place, the words ``a form provided by the Registration Unit''. Sec. 5.204 [Amended] 8. Amend Sec. 5.204 in paragraph (a) by removing the words ``Form OBD-68'' and adding, in their place, the words ``a form provided by the Registration Unit''. Sec. 5.205 [Amended] 9. Amend Sec. 5.205 in paragraph (a) by removing the words ``OBD- 64'' and adding, in their place, the words ``the supplemental statement form. Sec. 5.206 [Amended] 10. Amend Sec. 5.206 in paragraph (b) by adding the words ``or if it is filed in an electronic format acceptable to the registration Unit'' following the words ``ink''. 11. Revise paragraph (c) of Sec. 5.304 to read as follows: Sec. 5.304 Exemptions under sections 3(d) and (e) of the Act. * * * * * (c) For the purpose of section 3(d)(2) of the Act, the term ``other activities not serving predominantly a foreign interest'' includes political activities on behalf of foreign commercial interests, even if such activities are directed or controlled by a foreign government or foreign political party. The term does not include other political activities that are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in substantial part by a government of a foreign country or a foreign political party. * * * * * 12. Revise paragraph (a) of Sec. 5.306 to read as follows: Sec. 5.306 Exemption under section 3(g) of the Act. * * * * * (a) Attempts to influence of persuade agency personnel or officials other than in the course of judicial proceedings, criminal or civil law enforcement inquiries, investigations, or proceedings, or agency proceedings required by statute or regulation to be conducted on the record, shall include only such attempts to influence or persuade with reference to formulating, adopting, or changing the domestic or foreign policies of the United States of with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party; and * * * * * Sec. 5.306 [Amended] 13. Amend Sec. 5,306 in the last sentence of paragraph (b) by removing the word ``like'' and adding, in its place, the word ``fall''. 14. Add Sec. 5.307 to read as follows: Sec. 5.307 Exemption under section 3(h) of the Act. For the purpose of section 3(h) of the Act, the burden of establishing that registration under the Lobbying Disclosure Act of 1995 (LDA), 2 U.S.C. 1601 et seq., has been made shall fall upon the person claiming the exemption. The Department of Justice will accept as prima facie evidence of registration a duly executed registration statement filed pursuant to the LDA. In no case where a foreign government or foreign political party is the ultimate foreign principal will the exemption under section 3(h) be recognized. Sec. 5.400 [Amended] 15. a. Amend the heading of Sec. 5.400 by removing the words ``political propaganda'' and adding, in their place, the words ``informational materials''. b. Amend Sec. 5.400 in paragraph (a) by removing the words ``two copies of each item of political propaganda'' and adding, in their place, the words ``informational materials'', and by adding, before the period, the words ``no later than 48 hours after the beginning of the transmittal of the informational materials''. c. Amend Sec. 5.400 in paragraph (b) by removing the words ``two copies of an item of political propaganda'' and adding, in their place, the words ``informational materials'' and by removing the word ``material'' and adding, in its place, ``materials''. d. Amend Sec. 5.400 in the first sentence of paragraph (c) by removing the words ``two copies of a motion picture containing political propaganda'' and adding, in their place, the words ``a copy of a motion picture''. Sec. 5.401 [Removed] 16. Remove Sec. 5.401. Sec. 5.402 [Amended] 17. a. Revise the heading of Sec. 5.402 as set forth below. b. Amend Sec. 5.402 in paragraph (a) by removing the words ``political propaganda'' and adding, in their place, the words ``informational materials'', by removing the words ``it has'' and adding, in their place, the words ``they have'', and by removing the word ``its'' and adding in its place, the word ``their''. c. Amend Sec. 5.402 in paragraph (b) by removing the words ``An item of political propaganda which is'' and adding, in their place, the words ``Informational materials'', and removing the words ``which is'' and adding, in their place, the words ``which are'', and by removing the words ``such item'' and adding, in their place, the words ``such materials''. [[Page 37067]] d. Amend Sec. 5.402 in paragraph (c) by removing the words ``An item of political propaganda which is'' and adding, in their place, the words ``Informational materials'', and by removing the phrase ``which is not'' and adding, in its place, the phrase ``which are not''. e. Amend Sec. 5.402 in paragraph (d) by removing the words ``Political propaganda as defined in section 1(j) of the Act which is'' and adding, in their place, the words ``Informational materials that are'', and by removing the words ``is caused'' and adding, in its place, the words ``are caused''. f. Amend Sec. 5.402 in paragraph (e) by removing the words ``political propaganda as defined in section 1(j) of the Act'' and adding, in their place, the words ``informational materials''. g. Amend Sec. 5.402 in paragraph (f) by removing the words ``political propaganda'' and adding, in their place, the words informational materials''. h. Add new paragraph (g) to Sec. 5.402 to read as follows: Sec. 5.402 Labeling informational materials * * * * * (g) For the purpose of section 4(b) of the Act, a statement will be deemed conspicuous if it prefaces or accompanies the informational materials. Sec. 5.500 [Amended] 18. Amend Sec. 5.500 in paragraph (a)(4) by removing the words ``political propaganda has'' and adding, in their place, the words ``informational materials have''. Sec. 5.600 [Amended] 19. Amend Sec. 5.600 by adding the words ``informational materials,'' following the words ``Registration statements,'' and by removing the words ``from 10 a.m. to 4 p.m.'' and adding, in their place, the words `'during the posted hours of operation.''. Sec. 5.601 [Amended] 20. a. Amend Sec. 5.601 in paragraph (a) by adding the words ``informational materials,'' following the word ``thereto,''. b. Amend Sec. 5.601 in paragraph (b) by adding the words ``informational materials,'' following the word `'thereto,''. Dated: June 26, 1999. Janet Reno, Attorney General. [FR Doc. 99-16941 Filed 7-8-99; 8:45 am] BILLING CODE 4410-14-M