Understanding FARA Part 3: The Registration Documents

We Americans do not like foreign governments meddling in our domestic affairs, but our laws permit some activities if they are disclosed. This is the third of three posts (first post here and second post here) regarding non-governmental (not to be confused with “NGO”) economic and political agents who operate and exert influence on U.S. soil on behalf of foreign governments and quasi-governmental groups. Often lawyers, lobbyists, and consultants are the types of individuals involved with representing the interests of foreign clients, but those categories are not exclusive. These entities and individuals are considered “foreign agents” under the U.S. Foreign Agents Registration Act (“FARA”), and as foreign agents, they are required to register and update their registrations regarding each foreign client.

In a prior post, I predicted that FARA would soon bite those working on behalf of China:

You may also be wondering why those working on behalf of China as foreign agents have not been involved in FARA prosecutions at this point, while there have been plenty of criminal economic espionage cases brought against those stealing trade secrets for China (see here) by the DOJ. Based on the current state of affairs, you can believe that foreign agents operating on behalf of China will be in the crosshairs next.

FARA was recently in the news again: 35 US Lawmakers Seek DOJ Probe of Chinese State-Run Paper China Daily (and here) for its involvement in disseminating CCP propaganda under the brand China Watch, with articles being published in The Wall Street Journal, The New York Times, and the Washington Post, among others.

Here is a brief overview of the various FARA registration documents (found here at), all of which are filed electronically here.

Registration Statement. This is the primary registration form that must be filed by each foreign agent. The form centers on the registrant (the foreign agent) and not the foreign principals the foreign agent represents, though the foreign agent is responsible to report information on its foreign principal clients. The information required is not overwhelming, but this form and the following forms have some nuance to them, and you need to know exactly what actions you will be taking on behalf of your foreign principals so that you can describe them accurately and consistently across all of the forms.

Exhibit A. This contains information on the foreign principal you represent. If you represent multiple foreign principals, you must file one Exhibit A for each of them.

Exhibit B. You will attach your written engagement letter with the foreign principal to this form, and if you do not have a written engagement letter, you will need to describe the arrangement. You also need to describe your activities on behalf of the foreign principal, which includes determining whether your activities constitute “political activities,” meaning any activity that you believe will or is intended to influence any U.S. “agency or official” or “any section of the public within the United States.” If you are only helping the foreign principal engage with non-U.S. political actors, then you may not be engaging in political activities. You still need to register if you are acting as public relations counsel or political consultant to the foreign principal, both of which are broad categories.

Exhibit C. No printed form is provided, but you are required to provide a copy of your charter documents and bylaws. To a corporate lawyer like me, the request of “bylaws” seems unnecessarily narrow and should include shareholder agreements and operating agreements to provide a full view into how decisions are made within your company and who are the key players. But for now you only need to provide articles and bylaws if you are a corporation and only the certificate or articles of formation if you are an LLC (and nothing if you are a partnership that has not filed a certificate or articles of formation).

Amendment to Registration Statement. If the attorney general’s office requires you to make changes after submitting the Registration Statement, you will use this form. You are also responsible to use this form to update any information that becomes inaccurate after you file the Registration Statement, including minutiae like the list of employees, contractors, etc. working on each project and whether your activities on behalf of the foreign principal differ from those initially reported on the Registration Statement.

Short Form Registration Statement. This will be filled out and signed by every individual and entity that is a partner, director, or officer in your business, along with each employee, agent, consultant, or subcontractor involved in the work on behalf of the foreign principal.

Supplemental Statement. This is a detailed form like the initial Registration Statement, and you must file this every six months for the duration of your registration under FARA. It is used to report any changes to the Registration Statement. You are also required to file this statement within 30 days after your representation of the foreign principal has been terminated, including to indicate that you are no longer required to register under FARA.

FARA registration is required for representation of any foreign principal, not just those representing the Chinese government or quasi-governmental groups, but because China is in the crosshairs you need to ensure you are fully compliant with this registration process and the ongoing reporting requirements.

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.