JUSTICE DEPARTMENT PROPOSES CHANGES TO FARA REGULATIONS
May 28, 2025
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As our readers may recall, DOJ issued a Notice of Proposed Rulemaking (“NPRM”) earlier this year proposing changes to regulations governing compliance with the Foreign Agents Registration Act (“FARA”). Absent an exemption under the FARA, any person that acts as an agent of a foreign principal and engages in certain covered activity within the U.S. must register and file periodic reports with the DOJ. Foreign governments and political parties are well understood to be “foreign principals” and the growing use of state-owned enterprises for geopolitical and strategic purposes complicates application of FARA regulations. Accordingly, the NPRM proposes several changes to the current regulations seeking to clarify a foreign agent’s obligations and whether any statutory exemptions apply. A commonly used exemption is known as the “commercial” exemption which permits activities on behalf of foreign principals that are private and nonpolitical in furtherance of a bona fide trade or commerce. One proposed change to the commercial exemption, among others, would create a set of four exclusions to the exemption. If finalized, an agent would be categorically precluded from obtaining the exemption if:
- the intent or purpose of the activities is to benefit the political or public interests of the foreign government or foreign political party;
- the foreign government or political party “influences” the activities;
- the principal beneficiary of the activities is a foreign government or political party; or
- the activities are undertaken on behalf of an entity that is directed or supervised by a foreign government or foreign political party (such as a state-owned enterprise) and promote the political or public interests of that foreign government or political party.
In the event that the set of four exclusions does not preclude exemption, the NPRM recommends that DOJ adopt a totality-of-the-circumstances test to determine whether the activities at issue predominantly serve a foreign or domestic interest using a set of non-exhaustive factors. The NPRM as written, could impact foreign air carriers, especially those who are owned by foreign governments. Determining whether specific activities trigger registration under the FARA is highly fact dependent. Should carriers have questions on FARA compliance, they should promptly seek counsel on how to evaluate the nature of their activities and whether any statutory exemptions may apply.
This Aviation Blog is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr at 202.659.6622 or esahr@eckertseamans.com; Drew Derco at 202.659.6665 or dderco@eckertseamans.com, Andrew Orr 202.659.6625 or aorr@eckertseamans.com; Jay Julien at 202.659.6648 or jjulien@eckertseamans.com; or Tyler Myers at 202.659.6642 or trmyers@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.
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