33826 Federal Register / Vol. 83, No. 138 / Wednesday, July 18, 2018 / Rules and Regulations 

litigation and meets the criteria of 

section 3(b)(2) requiring that all 

regulations be written in clear language 

and contain clear legal standards. 

H. Consultation With Indian Tribes 

(E.O. 13175) 

The Department strives to strengthen 

its government-to-government 

relationship with Indian Tribes through 

a commitment to consultation with 

Indian Tribes and recognition of their 

right to self-governance and Tribal 

sovereignty. We have evaluated this rule 

under the Department’s consultation 

policy and under the criteria in 

Executive Order 13175 and have 

determined there are no potential effects 

on federally recognized Indian Tribes 

and Indian trust assets. 

I. Paperwork Reduction Act 

This rule does not contain any 

information collections requiring 

approval under the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq. 

J. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because it is of an administrative, 

technical, and procedural nature. See, 

43 CFR 46.210(i). No extraordinary 

circumstances exist that would require 

greater review under the National 

Environmental Policy Act. 

K. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

L. Determination To Issue Final Rule 

Without the Opportunity for Public 

Comment and With Immediate Effective 

Date 

BIA is taking this action under its 

authority, at 5 U.S.C. 552, to publish 

regulations in the Federal Register. 

Under the Administrative Procedure 

Act, statutory procedures for agency 

rulemaking do not apply ‘‘when the 

agency for good cause finds . . . that 

notice and public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest.’’ 5 U.S.C. 

553(b)(3)(B). BIA finds that the notice 

and comment procedure are 

impracticable, unnecessary, or contrary 

to the public interest, because: (1) These 

amendments are non-substantive; and 

(2) the public benefits for timely 

notification of a change in the official 

agency address, and further delay is 

unnecessary and contrary to the public 

interest. Similarly because this final rule 

makes no substantive changes and 

merely reflects a change of address and 

updates to titles in the existing 

regulations, this final rule is not subject 

to the effective date limitation of 5 

U.S.C. 553(d). 

List of Subjects in 25 CFR Part 83 

Administrative practice and 

procedures, Indians-tribal government. 

For the reasons stated in the 

preamble, the Department of the 

Interior, Bureau of Indian Affairs, 

amends part 83 in Title 25 of the Code 

of Federal Regulations as follows: 

PART 83—PROCEDURES FOR 

FEDERAL ACKNOWLEDGMENT OF 

INDIAN TRIBES 

■ 1. The authority citation for part 83 

continues to read as follows: 

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 

479a–1; Pub. L. 103–454 Sec. 103 (Nov. 2, 

1994); and 43 U.S.C. 1457. 

■ 2. Revise § 83.20 to read as follows: 

§ 83.20 How does an entity request 

Federal acknowledgment? 

Any entity that believes it can satisfy 

the criteria in this part may submit a 

documented petition under this part to: 

Department of the Interior, Office of the 

Assistant Secretary—Indian Affairs, 

Attention: Office of Federal 

Acknowledgment, Mail Stop 4071 MIB, 

1849 C Street NW, Washington, DC 

20240. 

Dated: June 14, 2018. 

John Tahsuda, 

Principal Deputy Assistant Secretary—Indian 

Affairs, Exercising the Authority of Assistant 

Secretary—Indian Affairs. 

[FR Doc. 2018–15334 Filed 7–17–18; 8:45 am] 

BILLING CODE 4337–15–P 

DEPARTMENT OF LABOR 

Office of Labor-Management 

Standards 

29 CFR Parts 405 and 406 

RIN 1245–AA07 

Rescission of Rule Interpreting 

‘‘Advice’’ Exemption in Section 203(c) 

of the Labor-Management Reporting 

and Disclosure Act 

AGENCY: Office of Labor-Management 

Standards, Department of Labor. 

ACTION: Final rule. 

SUMMARY: This final rule rescinds the 

regulations established in the final rule 

titled ‘‘Interpretation of the ‘Advice’ 

Exemption in Section 203(c) of the 

Labor-Management Reporting and 

Disclosure Act,’’ effective April 25, 

2016. 

DATES: This final rule is effective on 

August 17, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Davis, Chief of the Division of 

Interpretations and Standards, Office of 

Labor-Management Standards, U.S. 

Department of Labor, 200 Constitution 

Avenue NW, Room N–5609, 

Washington, DC 20210, (202) 693–0123 

(this is not a toll-free number), (800) 

877–8339 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Statutory Authority 

Sections 203 and 208 of the LMRDA, 

29 U.S.C. 432, 438, set forth the 

Department’s authority. Section 208 

gives the Secretary of Labor authority to 

issue, amend, and rescind rules and 

regulations prescribing the form and 

publication of reports required under 

Title II of the Act and such other 

reasonable rules and regulations as 

necessary to prevent circumvention or 

evasion of the reporting requirements. 

29 U.S.C. 438. Section 203, discussed in 

more detail below, sets out the 

substantive reporting obligations. 

The Secretary has delegated his 

authority under the LMRDA to the 

Director of the Office of LaborManagement Standards and permitted 

redelegation of such authority. See 

Secretary’s Order 03–2012 (Oct. 19, 

2012), published at 77 FR 69375 (Nov. 

16, 2012). 

II. Background 

A. Introduction 

In this final rule, the Office of LaborManagement Standards of the 

Department of Labor revises the Form 

LM–20 Agreement and Activities Report 

and the Form LM–10 Employer Report 

upon reviewing the comments the 

Department received in response to a 

June 12, 2017 Notice of Proposed 

Rulemaking. 82 FR 26877. The NPRM 

proposed to rescind the regulations 

established in the final rule titled 

‘‘Interpretation of the ‘Advice’ 

Exemption in Section 203(c) of the 

Labor-Management Reporting and 

Disclosure Act,’’ effective April 25, 

2016. 81 FR 15924 (Mar. 24, 2016) 

(‘‘Persuader Rule’’). 

This Persuader Rule revised the 

Department’s interpretation of the 

‘‘advice’’ exemption to the reporting 

requirements of Labor-Management 

Reporting and Disclosure Act Section 

203. Sections 203(a) and (b) require 

employers and consultants to file 

reports when they reach an agreement 


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1The LMRDA defines a ‘‘labor relations 

consultant’’ as ‘‘any person who, for compensation, 

advises or represents an employer, employer 

organization, or labor organization concerning 

employee organizing, concerted activities, or 

collective bargaining activities.’’ 29 U.S.C. 402(m). 

2The statute and the Form LM–10 also require 

disclosure of financial activities that do not 

constitute persuader activities, such as payments or 

loans from an employer to a labor union or a labor 

union’s official. Id. 

that the consultant will perform 

activities to persuade employees about 

how or whether to exercise their 

collective bargaining rights. But Section 

203(c) excepts agreements by 

consultants who ‘‘give advice’’ to the 

employer. The Persuader Rule sought to 

require employers and their consultants 

to file a report not only when they make 

agreements or arrangements pursuant to 

which a consultant directly contacts 

employees, but also when a consultant 

engages in activities ‘‘behind the 

scenes’’ if an object of those activities is 

to persuade employees concerning their 

rights to organize and bargain 

collectively. Id. at 15925. Such ‘‘behind 

the scenes’’ activity included, for 

instance, recommending drafts of or 

revisions to an employer’s speeches and 

communications if those drafts or 

revisions were designed to influence 

employees’ exercise of their 

organizational rights. 

In the NPRM, the Department 

proposed to rescind the Persuader Rule 

to further its consideration of the legal 

and policy objections raised by the 

federal courts that have reviewed the 

Rule and by other stakeholders. A 

number of comments objected to 

rescinding the Persuader Rule with a 

view toward engaging in further 

consideration. [LMSO–2017–0001– 

0543, AFL–CIO pages 9–10; LMSO– 

2017–0001–0797, NABTU, page 4, 

LMSO–2017–0001–1126, UFCW, page 

4]. 

In accordance with these comments, 

the Department has now conducted its 

ultimate review of the objections to the 

Persuader Rule and has concluded that 

the Rule must be rescinded. The Rule 

relied on an inappropriate reading of 

Section 203(c) that required reporting 

based on recommendations that 

constitute ‘‘advice’’ under any 

reasonable understanding of the term. 

That fact alone requires rescission. Even 

if the statute does not unambiguously 

forbid the Persuader Rule, strong policy 

reasons—in particular, the Persuader 

Rule’s effect on the attorney-client 

relationship—militate in favor of 

rescission. 

Pursuant to today’s final rule, the 

reporting requirements in effect are the 

requirements as they existed before the 

Persuader Rule. Due to an intervening 

court order that enjoined the Persuader 

Rule nationwide, National Federation of 

Independent Business v. Perez (N.D. 

Tex. 5:16–cv–00066–c) (filed Mar. 31, 

2016), 2016 WL 3766121, 206 L.R.R.M. 

35982016 (granting preliminary 

injunction); 2016 WL 8193279 (filed 

Nov. 16, 2016) (granting permanent 

injunction) (NFIB), no reports were ever 

filed or due under the Persuader Rule. 

This final rule is considered an E.O. 

13771 deregulatory action. For a 

perpetual time horizon, the annualized 

cost savings are the same at $92.89 

million with a discount rate of 7 

percent. Details of the estimated cost 

savings of this final rule can be found 

in the Rule’s economic analysis. 

B. The LMRDA’s Reporting 

Requirements 

In enacting the LMRDA in 1959, a 

bipartisan Congress sought to protect 

the rights and interests of employees, 

labor organizations, employers, and the 

public generally as they relate to 

collective bargaining. 

Section 203(a) of the LMRDA, 29 

U.S.C. 433(a), requires employers to 

report to the Department ‘‘any 

agreement or arrangement with a labor 

relations consultant or other 

independent contractor or organization’’ 

under which such person ‘‘undertakes 

activities where an object thereof, 

directly or indirectly, is to persuade 

employees to exercise or not to 

exercise,’’ or how to exercise, their 

rights to union representation and 

collective bargaining. 29 U.S.C. 

433(a)(4).1 ‘‘[A]ny payment (including 

reimbursed expenses)’’ pursuant to such 

an agreement or arrangement must also 

be reported. 29 U.S.C. 433(a)(5). The 

report must be one ‘‘showing in detail 

the date and amount of each such 

payment, . . . agreement, or 

arrangement . . . and a full explanation 

of the circumstances of all such 

payments, including the terms of any 

agreement or understanding pursuant to 

which they were made.’’ An employer 

must submit this information on the 

prescribed Form LM–10 within 90 days 

of the close of the employer’s fiscal year. 

29 U.S.C. 433(a); 29 CFR part 405.2

LMRDA Section 203(b) imposes a 

similar reporting requirement on labor 

relations consultants and other persons. 

It provides, in part, that every person 

who enters into an agreement or 

arrangement with an employer and 

undertakes activities where an object 

thereof, directly or indirectly, is to 

persuade employees to exercise or not to 

exercise, or how to exercise, their rights 

to union representation and collective 

bargaining ‘‘shall file within thirty days 

after entering into such agreement or 

arrangement a report with the Secretary 

. . . containing . . . a detailed 

statement of the terms and conditions of 

such agreement or arrangement.’’ 29 

U.S.C. 433(b). Covered individuals must 

submit this information on the 

prescribed Form LM–20 (‘‘Agreement 

and Activities Report’’) within 30 days 

of entering into the reportable 

agreement or arrangement. See 29 U.S.C. 

433; 29 CFR part 406. 

A third report is relevant here. 

Section 203(b) further requires that 

every labor relations consultant or other 

person who engages in reportable 

activity must file an additional report in 

each fiscal year during which payments 

were made as a result of reportable 

agreements or arrangements. The report 

must contain a statement (A) of the 

consultant’s receipts of any kind from 

employers on account of labor relations 

advice or services, designating the 

sources thereof, and (B) of the 

consultant’s disbursements of any kind, 

in connection with such services and 

the purposes thereof. The consultant 

must submit the information on the 

prescribed Form LM–21 (‘‘Receipts and 

Disbursements Report’’) within 90 days 

of the close of the labor relations 

consultant’s fiscal year. See 29 U.S.C. 

433(b); 29 CFR part 406. 

Since at least 1963, the reporting 

requirements have required reporting by 

the prescribed forms, Form LM–10, 

Form LM–20, and Form LM–21. 28 FR 

14384, Dec. 27, 1963; See 29 CFR part 

405, 406. 

Section 203(c), referred to as the 

‘‘advice’’ exemption, provides in 

pertinent part that ‘‘nothing in this 

section shall be construed to require any 

employer or other person to file a report 

covering the services of such person by 

reason of his giving or agreeing to give 

advice to such employer.’’ 29 U.S.C. 

433(c). Finally, LMRDA Section 204 

exempts from reporting attorney-client 

communications, which are defined as 

‘‘information which was lawfully 

communicated to [an] . . . attorney by 

any of his clients in the course of a 

legitimate attorney-client relationship.’’ 

29 U.S.C. 434. Even if a report is 

triggered by persuader activity, and a 

report must therefore be filed, material 

that is advice is not to be reported on 

the form. 

C. Administrative and Regulatory 

History 

In 1960, one year after the LMRDA’s 

passage, the Department issued its 

initial interpretation of Section 203(c)’s 

advice exemption. This interpretation 

appeared in a technical assistance 

publication for employers. U.S. Dep’t of 

Labor, Bureau of Labor-Management 


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33828 Federal Register / Vol. 83, No. 138 / Wednesday, July 18, 2018 / Rules and Regulations 

3The Bureau of Labor-Management Reports was 

the predecessor agency to the Office of LaborManagement Standards. 

4See 81 FR at 15936 (quoting the agency’s 1962 

LMRDA Interpretive Manual as stating: ‘‘In a 

situation where the employer is free to accept or 

reject the written material prepared for him and 

there is no indication that the middleman is 

operating under a deceptive arrangement with the 

employer, the fact that the middleman drafts the 

material in its entirety will not in itself generally 

be sufficient to require a report.’’) (emphasis 

omitted). 

5 In 2001, the Department temporarily altered its 

interpretation of Section 203(c), expanding the 

scope of reportable activities by focusing on 

whether an activity has persuasion of employees as 

an object, rather than categorically exempting 

activities in which a consultant has no direct 

contact with employees. See 66 FR 2782 (Jan. 11, 

2001). However, later that year, that interpretation 

was rescinded, and the Department returned to its 

prior view. See 66 FR 18864 (Apr. 11, 2001). 

Reports,3 Technical Assistance Aid No. 

4: Guide for Employer Reporting (1960). 

Under this original interpretation, the 

Department required employers to 

report any ‘‘[a]rrangement with a ‘labor 

relations consultant’ or other third party 

to draft speeches or written material to 

be delivered or disseminated to 

employees for the purpose of 

persuading such employees as to their 

right to organize and bargain 

collectively.’’ Id. at 18. By contrast, 

employers were not required to report 

‘‘[a]rrangements with a ‘labor relations 

consultant,’ or other third parties related 

exclusively to advice, representation 

before a court, administrative agency, or 

arbitration tribunal, or engaging in 

collective bargaining on [the 

employer’s] behalf.’’ Id. Additionally, in 

opinion letters to members of the 

public, the Department stated that a 

lawyer’s or consultant’s revision of a 

document prepared by an employer 

constituted reportable activity. See 76 

FR 36178, 36180 (June 21, 2011) 

(NPRM) (citing Benjamin Naumoff, 

Reporting Requirements under the 

Labor-Management Reporting and 

Disclosure Act, in Fourteenth Annual 

Proceedings of the New York University 

Conference on Labor 129, 140–141 

(1961)). 

Just two years later, the Department 

revisited its interpretation, adopting the 

view that it was to hold for the next 

several decades. The Department’s 

revised interpretation construed the 

advice exemption of Section 203(c) so as 

to no longer trigger reporting upon the 

provision of materials by a third party 

to an employer that the employer could 

‘‘accept or reject.’’ 4 But a consultant 

who did present materials for the 

employer to accept or reject could 

trigger disclosure obligations by 

interacting with employees, either 

directly or through an agent. See 

Interpretative Manual section 265.005 

(Scope of the Advice Exemption).5

On June 21, 2011, the Department 

issued a notice of proposed rulemaking 

to revise its interpretation of Section 

203(c). 76 FR 36178. The Department 

received approximately 9,000 

comments. 81 FR at 15945. On March 

24, 2016, the Department issued its final 

Rule, addressing the comments it 

received. See 81 FR at 15945–16,000 

(Mar. 24, 2016). 

The Persuader Rule—the subject of 

this final rule—altered the prior, 

decades-long interpretation. The 

preamble to the Persuader Rule and the 

instructions on the relevant forms 

defined ‘‘advice,’’ which does not give 

rise to a reporting obligation, as ‘‘an oral 

or written recommendation regarding a 

decision or a course of conduct.’’ Id. at 

15,939, 16,028 (LM–10 instructions), 

16,044 (LM–20 instructions). The 

Persuader Rule then defined four new 

categories of non-contact conduct that 

triggered reporting obligations when 

done with an object to persuade: 

Directing supervisor activity, providing 

material for employers to disseminate to 

employees, conducting tailored 

seminars on the issue of unionization, 

and developing or implementing 

personnel policies designed to influence 

unionization. 81 FR at 15938. (These 

categories were in addition to contact of 

employees by a consultant or a 

consultant’s agent, which the Rule 

continued to cover.) Among the 

activities covered by the Persuader 

Rule’s four new categories were 

providing messaging on unionization to 

employers, 81 FR at 15970; developing 

policies for employers to dissuade 

employees as to the need for a union 

(such as a longer lunch break or a more 

generous leave policy), 81 FR at 15973; 

drafting or revising written materials 

regarding unionization for employers to 

disseminate to employees, 81 FR at 

15971; or planning ‘‘captive audience’’ 

meetings or scripting interactions 

between supervisors and employees, 81 

FR at 15970. 

The Department thus construed the 

‘‘advice’’ exemption more narrowly than 

it had done previously. In particular, it 

abandoned the position that developing 

speeches, communications, policies, 

and other proposals that an employer 

may decide to accept or reject 

constituted ‘‘advice’’ that did not trigger 

the reporting requirement. Under the 

new rule, the fact that the employer 

itself delivered the message or carried 

out the policy developed by a 

consultant would no longer exempt a 

consulting arrangement from reporting. 

The stated purpose of this change was 

to ‘‘more closely reflect the employer 

and consultant reporting intended by 

Congress in enacting the LMRDA.’’ 81 

FR at 16001. The Persuader Rule cited 

evidence that the use of outside 

consultants to contest union organizing 

efforts had proliferated, while the 

number of reports filed remained 

consistently small. 81 FR at 16001. The 

Department concluded that its previous 

‘‘broad interpretation of the advice 

exemption ha[d] contributed to this 

underreporting.’’ Id. 

D. Litigation Surrounding the Rule 

Shortly after it was issued, the 

Persuader Rule was challenged in three 

district courts and eventually enjoined 

on a nationwide basis. Plaintiffs in those 

suits contended that the Rule conflicts 

with the LMRDA, is arbitrary and 

capricious, violates the First 

Amendment, and is void for vagueness. 

Associated Builders & Contractors of 

Arkansas v. Perez (E.D. Ark. 4:16-cv169); Labnet, Inc. v. U.S. Dep’t of Labor, 

197 F. Supp. 3d 1159 (D. Minn. 2016); 

Nat’l Fed’n of Indep. Bus. v. Perez, 2016 

WL 3766121 (N.D. Tex.). On June 22, 

2016, the federal district court in 

Minnesota found that the plaintiffs were 

likely to establish that the Persuader 

Rule violated the LMRDA, in at least 

some of its applications, but denied 

their request for preliminary relief on 

the ground that plaintiffs had not shown 

the threat of irreparable harm. Labnet, 

197 F. Supp. 3d at 1175–76. On June 27, 

2016, a federal district court in Texas 

granted the challengers’ motion for 

injunctive relief—finding that the 

plaintiffs were likely to prevail on the 

merits of both their statutory and 

constitutional claims—and issued a 

nationwide preliminary injunction, 

which was later converted to a 

permanent injunction. NFIB, 2016 WL 

3766121, at *46; see also NFIB, 2016 WL 

8193279 (granting permanent 

injunction). The Department appealed 

to the Fifth Circuit, which has held the 

matter in abeyance pending this 

rulemaking. See NFIB, Dkt. No. 

00514035358 (Dec. 27, 2017). The other 

two court cases have also been stayed. 

III. Determination To Rescind 

While the NPRM proposed rescission 

of the Persuader Rule to enable the 

Department to engage in further 

analysis, a further review of the record, 

including several comments urging that 

the Department complete its final 

analysis of the Persuader Rule now, 

have convinced the Department that the 

best course of action is to achieve 


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6Several commenters noted that no further 

statutory analysis is needed given the Department’s 

years of extensive analysis and study that initially 

led to the promulgation of the Persuader Rule. See 

Communication Workers of America [pp. 1–2]; 

Economic Policy Institute [pp. 4–5]; Ranking 

Members Scott and Sablan [p. 3]. 

7Additionally, the Department received 1,433 

comments submitted via mail or email, all of which 

were duplicative of form letters that the Department 

also received properly via www.regulations.gov. 

8LMSO–2017–0001–0543, AFL–CIO pages 9–10; 

LMSO–2017–0001–0797, NABTU, page 4, LMSO– 

2017–0001–1126, UFCW, page 4. 

finality at this time.6 The Department’s 

NPRM notified the public of the 

possible rescission of the Persuader 

Rule, and the concerns animating that 

proposed rescission, including the 

Department’s concerns about 

‘‘alternative interpretations of the 

statute,’’ ‘‘the potential effects of the 

Rule on attorneys and employers 

seeking legal assistance,’’ the potential 

increased ‘‘burden of the Form LM–20,’’ 

and ‘‘the impact of shifting priorities 

and resource constraints.’’ 82 FR 26879. 

The Department received 1,160 

comments submitted via the 

www.regulations.gov website in 

response to its NPRM. Of this total, 

1,111 constituted non-substantive 

comments, including seven form 

letters.7 The remaining 49 comments 

were substantive in nature, submitted 

by labor organizations, trade 

associations, business and professional 

federations, law firms, public policy 

groups, and four Members of Congress. 

Many of the substantive comments, both 

supporting and opposing rescission, 

discussed the merits of the Persuader 

Rule’s consistency with Section 203(c) 

and provided the commenters’ views on 

the Department’s prior interpretation of 

the advice exemption. A number of 

comments objected to the Department’s 

proposal to rescind with a view to 

further consideration rather than 

making a final substantive 

determination at this time.8 Also, this 

same issue was evaluated at length in 

the Persuader Rule NPRM and final 

rule. The Department thus believes that 

it has received comments fully airing 

the substantive issues raised by the 

Persuader Rule, has completed its 

analysis of those issues, and will not 

engage in further analysis regarding its 

interpretation of Section 203(c) at this 

time. 

Based on the comments received, and 

in light of the Department’s legal and 

policy analysis, the Department has 

decided to rescind the Persuader Rule. 

The Department will continue to apply 

the longstanding interpretation of the 

advice exemption that predated the 

Persuader Rule. 

Four primary reasons lead the 

Department to its rescission decision. 

First, the Department has determined 

that Section 203(c)’s plain text clearly 

forbids the interpretation on which the 

Persuader Rule in part rested. Second, 

the Department has determined that the 

Persuader Rule unduly causes 

disclosure of client confidences that are 

at the heart of the attorney-client 

relationship. Third, the Department has 

concluded that the Form LM–21’s 

requirements substantially increased the 

burden on filers of the Form LM–20— 

a cost that the Persuader Rule declined 

to factor into its analysis. Fourth, the 

Department has determined to allocate 

its scarce resources to other priorities 

rather than to addressing the substantial 

fiscal burdens that the Persuader Rule 

imposed on the Department. 

A. The Persuader Rule Rested on a 

Misinterpretation of Section 203(c) 

Section 203(c) provides that the 

LMRDA’s reporting obligation is not 

triggered by a consultant’s ‘‘giving or 

agreeing to give advice’’ to an employer. 

The plain meaning of the term ‘‘advice,’’ 

as the Persuader Rule found, is ‘‘an oral 

or written recommendation regarding a 

decision or course of conduct.’’ 81 FR at 

15926. Decisions about speech and 

written communications are among the 

subjects on which such 

‘‘recommendations’’ are frequently 

made. Sometimes such advice may take 

the form of a general discussion about 

what the employer should or should not 

say to its employees. But it may also 

consist of drafts of speeches or written 

communications. Such drafts, if given to 

an employer to accept or reject, are 

simply recommendations to the 

employer to communicate as laid out in 

the draft. The employer remains free to 

disregard these recommendations and 

communicate in any manner it sees fit. 

Because the employer in such a scenario 

is the one communicating with 

employees, and the consultant simply 

proffers recommendations about those 

communications, the consultant renders 

only ‘‘advice’’ as that term is used in 

Section 203(c). 

The Persuader Rule required reporting 

based on such advice. For instance, the 

Persuader Rule explained that reporting 

is required when a consultant, who has 

no direct contact with employees, 

‘‘provides material or communications 

to the employer, in oral, written, or 

electronic form, for dissemination or 

distribution to employees.’’ 81 FR at 

16027 (Mar. 24, 2016). Likewise, the 

Rule required reporting for ‘‘drafting, 

revising, or providing speeches’’ and 

‘‘written material . . . for presentation, 

dissemination, or distribution to 

employees.’’ Id. 

The Persuader Rule maintained that 

the ‘‘preparation of persuader materials 

[such as speeches and written 

communications] is more than a 

recommendation to the employer that it 

should communicate its views to 

employees on matters affecting 

representation and their collective 

bargaining rights,’’ 81 FR at 15951 (Mar. 

24, 2016), but that analysis was 

mistaken. If the employer retains the 

ability to accept or reject the proffered 

communication, the consultant has not 

tendered ‘‘more than a 

recommendation,’’ even if his 

recommendation is made with the 

purpose to persuade employees. Id. That 

is because ‘‘the maker of a statement is 

the person or entity with ultimate 

authority over the statement, including 

its content and whether and how to 

communicate it.’’ Janus Capital Grp. v. 

First Derivative Traders 564 U.S. 135, 

142 (2011). 

Janus is instructive. There, plaintiffs 

claimed that a mutual fund’s allegedly 

misleading prospectuses were prepared 

by the fund’s investment advisor, and 

sought to hold the investment advisor 

liable under SEC Rule 10b–5 for 

‘‘mak[ing] an[] untrue statement of a 

material fact in connection with the 

purchase or sale of securities.’’ Id. at 137 

(first alteration in original; internal 

quotation marks omitted). The Supreme 

Court rejected plaintiffs’ claims, holding 

that, as the alleged misstatements had 

been issued solely on the authority and 

under the name of the mutual fund, the 

advisor could not be held liable even if 

it had prepared the prospectuses that 

the mutual fund ultimately adopted. Id. 

at 142–47. The Court explained that the 

mutual fund, rather than the investment 

advisor, exercised ‘‘ultimate authority’’ 

over whether to adopt any 

communication prepared by the advisor; 

the advisor, ‘‘[w]ithout control, . . . can 

merely suggest what to say, not ‘make’ 

a statement in its own right.’’ Id. at 142. 

The same rationale applies here: A 

consultant’s draft of, or revisions to, 

speeches or other communications, 

constitute recommendations about how 

the employer should communicate with 

its employees. As long as the ‘‘ultimate 

authority’’ to decide whether to make 

such communications rests with the 

employer, such recommendations by a 

consultant are merely ‘‘advice’’ within 

the meaning of Section 203(c). 

The Persuader Rule rejected this 

interpretation based in significant part 

on the desire to give more effect to 

Section 203(c)’s reporting requirement 

for agreements to undertake activities 

‘‘where an object thereof, directly or 


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9The Eighth Circuit, which canvassed the 

legislative history of section 203 in a case involving 

a different question, reached a conclusion that 

supports the Department’s longstanding reading of 

section 203(c). That case involved the question 

whether a consultant who engages in reportable 

persuasion on behalf of one client must include in 

its LM–21 report information about advice given to 

other clients for whom it performed no persuader 

activity. Although the Department does not here 

opine on this issue, the Department notes that the 

Eighth Circuit exhaustively examined Section 203’s 

legislative history and rejected the view that 

Section 203(c) merely clarifies the meaning of 

Sections 203(a) and (b), concluding that the view 

of the advice exception as ‘‘broader than a mere 

proviso’’ more closely reflects congressional intent. 

Donovan v. Rose Law Firm, 768 F.2d 964, 974 (8th 

Cir. 1985). The Eighth Circuit also persuasively 

explained how previous courts of appeals that 

reached the opposite conclusion on this question 

misread the intent of Section 203(c). See, e.g., 

Humphreys, Hutcheson and Mosely v. Donovan, 

755 F.2d 1211 (6th Cir. 1985); Price v. Wirtz, 412 

F.2d 647 (5th Cir. 1969) (en banc). These cases have 

limited relevance with regard to the question 

presented by the Persuader Rule and this 

proceeding. As the D.C. Circuit explained in UAW, 

the question considered in these cases differed from 

‘‘the threshold question presented by this 

[rulemaking]: what is the appropriate 

characterization of activity that can be viewed as 

both advice and persuasion?’’ UAW, 869 F.2d at 618 

n.3. Nevertheless, the Eighth Circuit’s wellreasoned conclusion that Section 203(c) does not 

serve merely to make explicit the implicit contours 

of Sections 203(a) and (b) is consistent with the 

Department’s longstanding interpretation that it 

reinstates today and is at least somewhat 

inconsistent with the Persuader Rule. 

10The Persuader Rule rejected the view that the 

term ‘‘indirectly’’ could be given meaning by 

attributing to it coverage of a consultant’s retention 

of a third party to interact with employees, because, 

according to the Persuader Rule, such indirect 

persuasion by a consultant would be covered even 

absent the words ‘‘or indirectly.’’ 57 FR at 15949, 

fn. 39. Absent any definitive authority on how the 

statute would be interpreted in the absence of those 

words, the Department finds persuasive the 

suggestion that Congress included the words ‘or 

indirectly’ to make clear something that might well 

not be implicit in the statute otherwise: That a 

consultant’s use of a third party to contact 

employees triggers reporting requirements. 

indirectly, is to persuade employees’’ 

with respect to their collective 

bargaining rights. 29 U.S.C. 433(a)(4) 

(emphasis added); see also id. § 433(b) 

(likewise covering ‘‘indirect’’ 

persuasion). The Persuader Rule 

reasoned that, unless the drafting of 

speeches and communications were 

deemed ‘‘indirect’’ persuasion (in 

assistance of the employer’s ‘‘direct’’ 

dissemination of the statements to its 

employees), the term ‘‘indirect’’ would 

have little independent meaning. See 57 

FR at 15926, 15933, 15936–37, 15949 fn 

39. The Department is now convinced, 

after a review of the statute’s text, the 

intervening court decisions, and the 

submitted comments, that this reading 

of Section 203(c) is improper. 

First, the Department’s prior 

longstanding interpretation comports 

with the general principle ‘‘that 

Congress, when drafting a statute, gives 

each provision independent meaning,’’ 

Torres v. Lynch, 136 S. Ct. 1619, 1628 

(2016) That presumption tells against 

the Persuader Rule. The Persuader Rule 

interpreted section 203(c) as having no 

independent meaning, merely ‘‘making 

explicit what sections 203(a) and (b) 

make implicit: That consultant activity 

undertaken without an object to 

persuade employees, such as advisory 

and representative services for the 

employer, do not trigger reporting.’’ 81 

FR at 15951; see also id. at 15952 

(advice exemption is simply a ‘‘rule of 

construction’’ that ‘‘underscore[s] that 

advice qua advice . . . does not trigger 

a reporting obligation simply because it 

arguably concerns a potential employer 

action that has an object to persuade’’). 

In other words, the Persuader Rule read 

Section 203(c) merely to clarify what 

already lies outside the scope of 

Sections 203(a) and (b)—depriving 

Section 203(c) of independent meaning. 

Both federal courts to have reviewed the 

Persuader Rule rejected this 

interpretation, and the D.C. Circuit long 

ago accepted the Department’s view that 

‘‘[t]he very purpose of section 203’s 

exemption prescription . . . is to remove 

from the section’s coverage certain 

activity that otherwise would have been 

reportable.’’ UAW v. Dole, 869 F.2d 616, 

618 (DC Cir. 1989) (R. Ginsburg, J.). The 

reading that the Department reinstates 

today, by contrast, gives robust and 

independent meaning to Section 

203(c).9

Second, the Persuader Rule is not 

needed to save the words ‘‘or 

indirectly’’ from redundancy, and the 

Department’s longstanding 

interpretation did not render the words 

‘‘or indirectly’’ redundant. These words 

bear independent meaning, under the 

Department’s previous interpretation, if 

construed to cover cases in which a 

consultant communicates with 

employees through a third party, such 

as an agent or independent contractor. 

Thus, for instance, reporting 

requirements would attach when a 

consultant hires a spokesman to spread 

its message to employees or to pass out 

to employees advocacy materials the 

consultant had prepared. In such cases, 

the consultant—rather than the 

employer—retains final authority over 

the message to be delivered to 

employees, thus depriving the 

consultant of the advice exemption. The 

words ‘‘or indirectly’’ ensure that 

reporting requirements attach to such 

conduct, which has long been the 

Department’s position. At least as far 

back as 1989, the Department’s 

Interpretative Manual asserted that a 

consultant who employs an agent to 

contact employees falls within Section 

203’s reporting requirement. 

Interpretative Manual section 265.005 

(Scope of the Advice Exemption) 

(‘‘Moreover, the fact that such material 

may be delivered or disseminated 

through an agent would not alter the 

result.’’).10 Even if the Department’s 

longstanding interpretation rendered the 

words ‘‘or indirectly’’ redundant, the 

redundancy to which the Persuader 

Rule reduced Section 203(c) means that 

one of the Persuader Rule’s principal 

rationales—the asserted need to avoid 

rendering the words ‘‘or indirectly’’ 

redundant—cannot stand. When either 

of two interpretations would create 

redundancy, the canon against 

redundancy cannot constitute a basis for 

choosing between the interpretations, 

because neither interpretation avoids 

redundancy. If anything, rendering the 

words ‘‘or indirectly’’ redundant is 

preferable to rendering the entirety of 

Section 203(c) redundant, as the 

Persuader Rule did. 

All that has been said above with 

respect to communications prepared by 

a consultant for final acceptance or 

rejection by the employer also applies to 

conduct and policies that a consultant 

advises an employer to implement, an 

activity that triggered reporting 

requirements under the Persuader Rule. 

Planning meetings with employees and 

developing personnel policies, like 

drafting a speech, consist of making 

recommendations that the employer is 

free to accept or reject. Planning such 

conduct or policies fits within the 

traditional meaning of ‘‘advice.’’ See 

Labnet, 197 F. Supp. 3d at 1169. 

While the Department’s own reading 

of the plain statutory text plays the 

principal role in supporting the 

interpretation of Section 203(c) taken 

here, the Department also notes that the 

only federal courts to have pronounced 

on the Persuader Rule found that it 

violates the text of the LMRDA or likely 

does so. One federal district court 

permanently enjoined the Persuader 

Rule after finding that it impermissibly 

required reporting based on advice 

within the meaning of Section 203(c) 

and indeed read Section 203(c) out of 

the statute. NFIB, 2016 WL 3766121, at 

*28; see also NFIB, 2016 WL 8193279 

(converting preliminary injunction to 

permanent injunction). The other 

district court to consider the Persuader 

Rule similarly held that it ‘‘categorizes 

conduct that clearly constitutes advice 

as reportable persuader activity’’ and 

concluded that the plaintiffs in that case 

‘‘have a strong likelihood of success on 

their claim that the [Persuader Rule] 

conflicts with the plain language of the 


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11A think tank [LMSO–2017–0001–0800; 

Economic Policy Institute p.5) raised a similar 

issue, asserting that the related litigation does not 

compel rescission. 

statute.’’ Labnet, 197 F. Supp. 3d at 

1170. 

A number of commenters agreed that 

the Persuader Rule incorrectly read 

Section 203(c). For instance, the Retail 

Industry Leaders Association [p. 5], 

Council on Labor Law Equality [pp. 20– 

21], and Coalition for a Democratic 

Workforce [pp. 7–8], as well as several 

others, contended that Congress 

intended to give the term ‘‘advice’’ 

broad scope and the Persuader Rule’s 

interpretation of Section 203(c) 

effectively eviscerated that advice 

exemption. The American Bar 

Association [p. 4] stated that the 

proposed interpretation of ‘‘advice’’ in 

the Persuader Rule would thwart the 

will of Congress. 

Other commenters opposed 

rescission, but failed to grapple with the 

fundamental statutory problem with the 

Persuader Rule. For example, one 

commenter [LMSO–2017–0001–0543; 

AFL–CIO page 9–10] urged the 

Department to retain the Persuader Rule 

because it ‘‘has multiple valid 

applications,’’ citing Labnet, Inc., 197 F. 

Supp. 3d at 1168. But rejection of the 

Department’s longstanding accept-orreject test stands at the heart of the 

Persuader Rule’s legal analysis, see 81 

FR at 15941, and that rejection is based 

on a fundamentally flawed 

interpretation of section 203. The 

Department accordingly is not 

rescinding the Persuader Rule because it 

has some invalid applications. The 

Department is rescinding the Persuader 

Rule because the Rule as a whole rested 

on an improper reading of Section 

203(c). 

Two Members of Congress serving on 

the House of Representatives’ 

Committee on Education and the 

Workforce opined that ‘‘a single district 

court decision should not be enough to 

justify rescinding a rule. [LMSO–2017– 

0001–1097; Ranking Members Scott and 

Sablan Comment Letter page 3.] 11 But 

the Department is not rescinding the 

Persuader Rule simply because a district 

court enjoined it. It is rescinding the 

Persuader Rule because the Department 

has concluded, after considering the 

arguments made by those challenging 

the Rule in litigation, the opinions of 

the two district courts to have 

pronounced on the Persuader Rule’s 

merits, the comments that have been 

submitted, and the plain meaning of the 

statutory text, that the Persuader Rule 

read Section 203(c) improperly. 

Several commenters opposed 

rescission on the ground that the 

Persuader Rule is needed to address 

underreporting. [AFL–CIO, page 10; 

Economic Policy Institute, page 4; 

Communications Workers of America, 

page 2; North America’s Building 

Trades Union, page 5; National Nurses 

United, page 2; Screen Actors Guild, 

page 2; and United Food and 

Commercial Workers, page 2] They 

noted that the Department cited 

underreporting under its prior 

interpretation—that a consultant incurs 

a reporting obligation only when it 

directly communicates with employees 

with an object to persuade them—as 

part of the rationale for promulgating 

the Persuader Rule. 81 FR 15933 (Mar. 

24, 2016) (‘‘Indeed, the prior 

interpretation did not properly take into 

account the widespread use of indirect 

tactics . . . and thus did not result in 

the reporting of most persuader 

agreements.’’). But activities such as 

drafting speeches, proposing policies, 

and other recommendations that a 

business can accept or reject fall within 

the plain meaning of the ‘‘advice’’ that 

Congress exempted from its reporting 

requirements. Failure to report these 

activities accordingly is not ‘‘evasion’’ 

of the LMRDA; rather, such activities 

fall within the unambiguous scope of 

the term ‘‘advice’’ that Congress 

expressly excepted from triggering 

Section 203’s reporting requirements, 

and thus declining to report based on 

such activities constitutes compliance 

with the LMRDA. 

Even if a court were to disagree with 

the Department’s view that its 

interpretation of the statute, as laid out 

in this rulemaking, is mandated by the 

statute, the Department’s reasonable 

reading of the statute should still be 

given deference under Chevron. 

Chevron, USA, Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 844 (1984). 

And, as discussed in more detail in the 

next sections, several policy 

considerations support rescission of the 

Persuader Rule and the Department’s 

prior longstanding interpretation of the 

statute. Even if the interpretation 

adopted herein were only one 

permissible interpretation of Section 

203(c), the Department would 

nevertheless adopt it based on these 

compelling policy considerations. 

B. The Persuader Rule Impinged on the 

Attorney-Client Relationship 

A second, independent, reason 

supports rescission: The Persuader Rule 

would have interfered with 

longstanding protections of the attorneyclient relationship. 

The duty to safeguard client 

confidences has long formed the 

bedrock of the attorney-client 

relationship. One hundred years ago, 

the American Bar Association’s first set 

of model ethics rules accepted as 

already established ‘‘[t]he obligation 

. . . not to divulge [a client’s] secrets or 

confidences.’’ Code of Professional 

Ethics No. 6 (1908). Today, the ABA’s 

Model Rules instruct that, absent 

specific exceptions, a ‘‘lawyer shall not 

reveal information relating to the 

representation of a client unless the 

client gives informed consent . . . .’’ 

Model Rule 1.6. 

The duty not to disclose confidences 

plays a vital role in encouraging 

businesses and individuals alike to seek 

counsel. Potential clients who fear their 

decision to retain counsel, or facts about 

the representation, will become public 

may hesitate before consulting a lawyer. 

Such hesitation would run counter to 

society’s interest in fostering legal 

compliance, as more citizens and 

businesses would be forced to act based 

on an uninformed interpretation of the 

law. Perhaps even more importantly, the 

disincentive built into the Persuader 

Rule in consulting an attorney is 

particularly troubling given that the 

Rule is vague regarding the activities 

that would be newly reportable. 

Pressuring Americans to act in 

ignorance of the law imperils a 

‘‘fundamental principle in our legal 

system[, which] is that laws . . . must 

give fair notice of conduct that is 

forbidden or required.’’ FCC v. Fox 

Television Stations, Inc., 567 U.S. 239 

(2012). For better or worse, such fair 

notice as a practical matter often 

requires consulting legal counsel. 

The Department finds generally 

persuasive the American Bar 

Association’s comments submitted in 

response to this rulemaking. One of 

these comments, on which the court in 

Texas relied, states that the Persuader 

Rule called for disclosure of important 

client confidences and would 

undermine the attorney-client 

relationship: 

[The Persuader Rule] . . . would 

require lawyers (and their employer 

clients) to disclose a substantial amount 

of confidential client information, 

including the existence of the clientlawyer relationship and the identity of 

the client, the general nature of the legal 

representation, and a description of the 

legal tasks performed. 

By requiring lawyers to file [such 

reports], the Proposed Rule could chill 

and seriously undermine the 

confidential client-lawyer relationship. 

In addition, by imposing these unfair 

reporting burdens on both the lawyers 


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12For these reasons, the Department was not 

persuaded by a comment that advocated retaining 

the Persuader Rule on the grounds that the Rule’s 

disclosure requirements by their own force 

exempted lawyers from confidentiality obligations 

that would otherwise apply. [LMSO–2017–0001– 

088127; 27 Law Professors page 5–6]. 

14This comment also contended that the 

Persuader Rule did not compel disclosure of client 

confidences. [LMSO–2017–0001–088127; 27 Law 

Professors page 4]. The comment asserts that there 

is ‘‘no conflict between the regulatory regime 

administered by the DOL and the ethical 

responsibilities of lawyers.’’ The comment notes 

that section 204 of the LMRDA expressly exempts 

‘‘information that was lawfully communicated to 

such attorney by any of his clients,’’ citing 29 U.S.C. 

434. Reporting is required only when the lawyer 

provides services other than legal services, the 

comment continues. The comment identifies 

several other reporting and disclosure requirements 

imposed on lawyers and concludes that there is 

‘‘little evidence’’ that these regimes have chilled 

attorneys from serving their clients. The 

Department is not persuaded by these arguments. 

First, it is notable that the comment does not 

dispute that the Persuader Rule did require 

disclosure of information that, absent the Persuader 

Rule, would be entitled to the protections of 

confidentiality. The portions of the Persuader Rule 

that did not infringe on confidential 

communications, such as the exemption for 

communications from a client to an attorney under 

29 U.S.C. 434, do not negate those that do, such as 

the requirement that guidance provided from an 

attorney to an employer with an intent to persuade 

employees triggers reporting. The assertion of ‘‘little 

evidence’’ of chilling in other statutory contexts is 

bare and unquantified and therefore not persuasive 

and, here, not only did several commenters raise 

this concern, but a U.S. Distric Court found 

evidence of actual chilling. NFIB, 2016 WL 

3766121, at *10; [Chairwoman Foxx and Walberg, 

p. 8; Associated General Contractors of America, p. 

8; Retail Industry Leaders Association, p.3; 

Independent Electrical Contractors, p. 6; Seyfarth 

Shaw, p. 4]. 

and the employer clients they represent, 

the Proposed Rule could very well 

discourage many employers from 

seeking the expert legal representation 

that they need, thereby effectively 

denying them their fundamental right to 

counsel. 

NFIB, 2016 WL 3766121, at *7–9. 

LMSO–2017–0001–0111, American Bar 

Assn., page 7.] Even a comment from 

several law professors in support of 

retaining the Persuader Rule did not 

dispute that the Rule required 

disclosure of information that would, 

absent the Rule, be shielded by rules of 

confidentiality. [LMSO–2017–0001– 

088127; 27 Law Professors page 5–7]. 

These concerns are not hypothetical; 

as the court in Texas found based on 

witness testimony, ‘‘law firms around 

the country have already started 

announcing their decisions to cease 

providing advice and representations 

that would trigger reporting under 

DOL’s New Rule,’’ which ‘‘decrease[s] 

employers’ access to advice from an 

attorney of one’s choice.’’ Id. at *10. The 

court further noted the Persuader Rule’s 

likely negative effect on organizations’ 

ability to offer unionization-related 

training and seminars to employers 

(including small businesses) because 

would-be trainers and attendees ‘‘will 

not want their attendance reported and 

made publicly available.’’ Id. at *11. 

After analyzing these and other 

considerations, the court ultimately 

held that the Persuader Rule was likely 

‘‘arbitrary, capricious, and an abuse of 

discretion’’ in part because ‘‘the rule 

unreasonably conflicts with state rules 

governing the practice of law.’’ Id. at 

*29. Several commenters shared similar 

concerns that the Texas court noted. 

[Chairwoman Foxx and Walberg, p. 8; 

Associated General Contractors of 

America, p. 8; Retail Industry Leaders 

Association, p. 3; Independent Electrical 

Contractors, p. 6; Seyfarth Shaw, p. 4; 

National Association of Homebuilders, 

p. 5; Coalition for a Democratic 

Workforce, p. 13; Employment Law 

Alliance, p. 7]. 

The Persuader Rule acknowledged the 

potential impact on attorney-client 

confidences, but simply concluded that 

the interpretation of the LMRDA 

advanced in the Rule, ‘‘as federal law, 

must prevail over any conflicting . . . 

rules governing legal ethics’’ and that 

Model Rule 1.6 and state laws modeled 

on it permit disclosure when required 

by law. 81 FR at 15998 (Mar. 24, 2016). 

Those arguments are beside the point. 

The Department agrees that federal law 

preempts state law and does not dispute 

that many state ethics laws permit 

disclosures required by law. But the 

state laws at issue enshrine, and bear 

witness to the importance of, certain 

principles of confidentiality—principles 

that the Persuader Rule, by requiring 

disclosure of client confidences, 

endangers irrespective of whether 

attorneys could be administratively 

disciplined for making such 

disclosures.12

This is not the first time the 

Department has recognized the need for 

confidentiality to protect the attorneyclient relationship in the organizing 

context. The largest labor unions (those 

with annual receipts of $250,000 or 

more) must under certain circumstances 

disclose and itemize disbursements to 

lawyers, but that rule does not apply 

when disclosure would expose the 

union’s prospective organizing strategy 

or provide a tactical advantage to a party 

in contract negotiations. See the 

Instructions for the Form LM–2, p22. 

The Persuader Rule included no similar 

exemption for employers’ consultation 

with attorneys. Rescinding the 

Persuader Rule continues to recognize 

the importance of confidentiality in the 

attorney-client relationship, consistent 

with the Instructions for the Form LM– 

2. 

One comment [LMSO–2017–0001– 

088127; 27 Law Professors page 2] 

advocated against rescission and noted 

the difficulty in obtaining evidence on 

how particular activities would affect 

the behavior of lawyers. The comment 

asserted that rescinding the Persuader 

Rule would preclude obtaining data on 

its effects and that input from lawyers 

on how they would change their 

practices could be ‘‘nothing more than 

speculative and self-serving.’’ 13 Because 

the Department rescinds the Persuader 

Rule on the merits rather than with a 

view to further consideration, this 

comment’s concerns about whether 

rescission would facilitate a future 

merits consideration is no longer 

apropos.14

Commenters offered conflicting policy 

and fact-based arguments about the 

effects of the Persuader Rule on 

reporting under the LMRDA. One think 

tank [Economic Policy Institute, pages 

7–8], for example, asserted that the 

proposed rescission would ‘‘let[] 

America’s working people down’’ 

because, in its view, the Persuader Rule 

constituted merely a ‘‘modest step 

toward leveling the playing field for 

workers by making sure they receive the 

information they deserve before making 

a decision on forming a union.’’ Id. 

Multiple labor unions made similar 

comments. A representative of the 

building trades characterized the acceptor-reject rule as a ‘‘loophole’’ that 

‘‘resulted in vast underreporting of 

persuader activities.’’ [See LMSO–2017– 

0001–0797 North America’s Building 

Trades Unions, p3]; [LMSO–2017– 

0001–0543 AFL–CIO, p. 3–4.] An 

international union stated, ‘While the 

Department will undoubtedly be 

inundated with comments from those 

who assert that the 2016 Rule was a sop 

to organized labor, the real beneficiaries 

of this proposal are the employees—the 

class of individuals for which the 

protections in Section 203 were 

intended.’’ LMSO–2017–0001–1104 

International Brotherhood of Teamsters, 

p3.] [SAG–AFTRA, pg. 2; UFCW, pg. 2] 

The Department is not persuaded. 

First, some Form LM–20 information 

would have been stale. As the 

commenters noted, the 30 day filing 

deadline for a Form LM–20 is not much 

shorter than the 38-day median 

timeframe between the filing of an 

NLRB petition and the ensuing election, 

and 90% of the elections are held 

within 56 days. See 79 FR 74307. 

Although the Persuader Rule estimated 

that employers engage consultants at the 

first signs of union organizing, 

indicating the persuader agreement 


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15The Department does not opine here on 

whether the statute requires consultants who have 

entered into persuader agreements or arrangements 

to list on the Form LM–21 non-persuader clients, 

i.e., employers with whom they did not into 

persuader agreements or arrangements. See 

Donovan v. Rose Law Firm, 768 F.2d 964, 974 (8th 

Cir. 1985). 

16See https://www.reginfo.gov/public/do/ 

PRAViewDocument?ref_nbr=201604-1245-001. 

would precede the petition, such 

promptness is very unlikely to be 

present in all cases; in cases where it is 

not, the Form LM–20 may not be filed 

early enough to be useful. 

Second, it is vital to distinguish 

between information that helps 

employees make an informed decision 

about their right to form a union, on the 

one hand, and information that is 

significantly less useful, on the other. 

Information as to whether a person with 

whom an employee comes into contact 

is actually working for the employee’s 

employer can help an employee 

evaluate whether to trust the arguments 

that that person may advance on the 

question of unionization. The additional 

disclosures that the Persuader Rule 

would have required, by contrast, are 

likely to be much less helpful. That is 

because, for any message or conduct 

that the Persuader Rule newly deemed 

to be indirect persuasion, employees 

already know that the employer stands 

behind that message or conduct, 

because the employer conveys the 

message or undertakes the conduct at 

issue. Knowing which advisor, if any, 

recommended a particular message or 

conduct is less likely to help employees 

make an informed decision than 

knowing that a seemingly-independent 

third-party is actually in the pay of his 

or her employer. It is the Department’s 

conclusion that the serious concerns 

regarding attorney-client confidentiality 

discussed in this section outweigh any 

assistance the former knowledge might 

render. 

Third, the relative paucity of LM–20 

reports under the Department’s 

longstanding interpretation of the 

advice exemption does not necessarily 

indicate under-reporting. Some 

commenters [Council on Labor Law 

Equality, p. 9; Independent Electrical 

Contractors, p. 7; Retail Industry 

Leaders Association, p. 7] argued that 

there is no indication that employers or 

consultants have engaged in misconduct 

or otherwise circumvented or evaded 

the LMRDA’s reporting requirements 

under the Department’s longstanding 

prior interpretation. The Department 

agrees: When comparatively few reports 

are filed, this can be an indication of 

non-compliance with the reporting rule 

or it can be an indication of relatively 

little reportable activity. The latter 

indicates compliance, not evasion, and, 

absent further information indicating 

that the filing of comparatively few 

reports instead indicates evasion, it 

provided no basis for the Persuader Rule 

and its mandatory reporting of activities 

such as recommending communications 

or courses of conduct for an employer 

to accept or reject. 

C. The Costs of Additional Use of Form 

LM–21 Further Support Rescission 

A third reason for rescission involves 

the additional regulatory burdens 

involving Forms LM–20 and LM–21 

imposed by the Rule. The obligation to 

file the Form LM–20 and the Form LM– 

21 result from the same event: Persuader 

activity. Under section 203(b), every 

person who enters into an agreement or 

arrangement to undertake persuader 

activities must file a report with the 

Secretary that includes a detailed 

statement of the terms and conditions of 

such arrangement within 30 days of 

entering into the agreement, currently 

accomplished by filing a Form LM–20. 

The person must then also file annually 

a report containing a statement of the 

person’s ‘‘receipts of any kind from 

employers on account of labor relations 

advice or services, designating the 

sources thereof,’’ and a statement of its 

disbursements of any kind, in 

connection with those services and their 

purposes, currently accomplished by 

filing a Form LM–21. See also 29 CFR 

406.3 (Form LM–21 requirements). 57 

FR 15929. Thus, by statute, the filing of 

a Form LM–20 necessitates the filing of 

a Form LM–21, so long as any 

disbursement is made pursuant to the 

reportable persuader agreement or 

arrangement. 

An increase in the range and number 

of activities that constitute ‘‘persuader 

activity’’ would increase the number of 

Form LM–20 and Form LM–21 filers. 

Each form imposes a unique 

recordkeeping and reporting burden on 

the filer. For example, a consultant/law 

firm that contracted with an employer 

and engaged in persuader activity under 

the Rule would have to file a Form LM– 

20 disclosing the arrangement with the 

employer. According to the instructions, 

the consultant would also have to file a 

Form LM–21 on which it reports the full 

name and address of employers from 

whom receipts were received directly or 

indirectly on account of labor relations 

advice or services, as well as the total 

amount of receipts. In addition, the 

consultant’s disbursements to officers 

and employees would be disclosed 

when made in connection with such 

labor relations advice or services. And 

the consultant would report in the 

aggregate the total amount of the 

disbursements attributable to this labor 

relations services and advice, with a 

breakdown by office and administrative 

expenses, publicity, fees for professional 

service, loans, and other disbursement 

categories. Finally, the consultant 

would be required to itemize its 

persuader-related disbursements, the 

recipient of the disbursements, and the 

purpose of the disbursements.15

The Department recognized in the 

final rule that the Persuader Rule would 

make some labor relations consultants 

and employers who had previously not 

been required to file at all under the 

LMRDA responsible for filing both 

forms LM–20 and LM–21, but did not 

fully consider that burden. Instead, it 

considered only the burden arising from 

the Form LM–20 and deferred 

consideration of the burden arising from 

Form LM–21 to a separate rulemaking. 

It did so, in part, because it intended to 

engage in parallel rulemaking for reform 

of the scope and detail of the Form LM– 

21. 57 FR 15992, fn 88. In the meantime, 

the Department issued a separate special 

enforcement policy that addressed the 

potential that new filers might have 

unique difficulties in filing the Form 

LM–21. Under that special enforcement 

policy, the filers of Form LM–20 who 

were also required to file a Form LM– 

21 were not required to complete two 

parts of that form. See https://

www.dol.gov/olms/regs/compliance/ecr/ 

lm21_specialenforce.htm. 

The Department has now considered 

the burdens that the Persuader Rule 

would have imposed on the expanded 

Form LM–21 filers and concluded that 

they would have been substantial. As 

described below, under the Persuader 

Rule, many more labor relations 

consultants would have had to complete 

the Form LM–21, and they would have 

needed to devote additional time and 

resources to do so. 

As discussed in the Economic 

Analysis below, the Department 

estimates that total number of Form 

LM–20 filers would have been 2,149. 

Consequently, there would also have 

been 2,149 Form LM–21 reports filed. 

This is an increase from the previously 

estimated 358 Form LM–21 reports. 

Thus the Persuader Rule would have 

created more filers of the Form LM–21. 

See https://www.reginfo.gov/public/do/ 

PRAViewDocument?ref_nbr=201604- 

1245-001. 

These filers would have spent 

additional time completing the form, far 

more than the 35 minutes previously 

estimated by the Department.16 Each 

filer of Form LM–21 is assumed to have 

already read the Form LM–20 form and 


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17While the Department could avoid some or all 

of this burden by declining to enforce, or enforcing 

on a limited basis, the Persuader Rule, rescinding 

the Persuader Rule will afford the regulated 

community greater certainty than simply adopting 

a non-enforcement policy. 

18A labor union raised concern that the rescission 

of the rule would also rescind the requirement that 

Form LM–10 and Form LM–20 be filed 

electronically. (LMSO–2017–0001–0110; American 

Federation of Teachers pp 2–3). ‘‘While, perhaps, 

reasonable minds may differ on the application of 

the advice exemption, one is hard pressed to think 

of a fair reason why persuaders should not have to 

file timely, intelligible forms via electronic means— 

just as unions have had to do for over a decade.’’ 

The comment stated that paper filing is more costly 

for the Department and results in delays in public 

disclosure. The commenter states, ‘‘full repeal of 

the original Rule does workers, the public, and 

researchers a real disservice,’’ and concludes that 

the Department should retain mandatory electronic 

filing of LM–10, LM–20, and LM–21 reports. 

Although outside the scope of the regulatory action, 

the Department will consider this request, as it 

moves to making all forms available for electronic 

filing. 

instructions and therefore knows 

whether it must file the Form LM–21. 

No additional reading time is therefore 

necessary to make this determination. 

Nevertheless, the completion of the 

Form LM–21 would have been 

complicated by the Persuader Rule 

because the statutory term ‘‘advice’’ was 

broadened and expanded by the 

Persuader Rule, with no explanation of 

how the revised definition applied to 

the Form LM–21. This lack of clarity 

increases the burden of the Form LM– 

21. Due to this increased complexity, 

completing the form would have thus 

consumed 154.5 minutes. This equals a 

$631,181 Form LM–21 burden arising 

from the Persuader Rule and this burden 

was not considered by the Department 

when issuing that rule. 

These additional costs of more than 

$631,000—which the Persuader Rule 

did not properly quantify or consider— 

are substantial and constitute an 

additional and important policy factor 

prompting rescission of the Persuader 

Rule to avoid unnecessary burden on 

the private sector. 

D. Rescinding the Persuader Rule Will 

Preserve Limited Departmental 

Resources for Competing Priorities 

A fourth reason for rescission of the 

Persuader Rule is the allocation of 

scarce resources to different priorities. 

The Department has the ‘‘right to shape 

[its] enforcement policy to the realities 

of limited resources and competing 

priorities.’’ Int’l Union, United Auto., 

Aerospace & Agr. Implement Workers of 

Am. v. Dole, 869 F.2d 616, 620 (D.C. Cir. 

1989). Under the prior interpretation of 

the advice exemption, there were 

significantly fewer reports due and 

accordingly fewer investigative 

resources needed for enforcing the rules 

on filing timely and complete reports. 

Further, under the prior interpretation, 

case investigations generally involved 

obtaining and reviewing the written 

agreement and interviewing employees. 

In contrast, enforcement of the 

Persuader Rule would likely have 

involved a lengthier and more 

complicated investigation, examining in 

detail the actions of consultants, their 

interactions with the employers’ 

supervisors and other representatives, 

and the content of attorney 

communications. The investigator 

would have been required to review 

both the direct reporting category and 

the four indirect persuader categories. 

This would have been a substantially 

more resource-intensive process that 

pulled limited resources away from 

other vital priorities. The Department 

does not believe that this allocation of 

resources is warranted.17

One comment [LMSO–2017–0001– 

1097; Ranking Members Scott and 

Sablan Comment Letter page 4] stated 

that the Department’s concern for 

limited resources ‘‘does not account for 

the discrepancy between unions’ broad 

disclosure requirements and employers’ 

meager obligations,’’ but that comment 

did not assess the Persuader Rule’s 

burden on the Department. The 

comment asserted that ‘‘the Form LM– 

2 that unions must file often consumes 

hundreds of pages, whereas employers’ 

LM–10, LM–20 and LM–21 are four, two 

and two pages, respectively.’’ But the 

resources filers spend completing their 

reports are not the same as the resources 

the Department spends administering 

the program. In addition, the length of 

the report does not correlate with the 

investigatory burden on the Department. 

The greater number of reports and the 

increased complexity of the 

investigations under the Persuader Rule 

mean persuader reports would have 

been resource intensive for the 

Department. In contrast to labor unions, 

which must file an annual report, 

persuader reports are required only 

when an employer or labor relations 

consultant actually engages in the 

identified persuader activities in the 

fiscal year. At the end of the fiscal year, 

the Department cannot know whether a 

particular employer or consultant owes 

a report, which substantially increases 

the time and expense of monitoring for 

delinquent employer and consultant 

reports.18

Ultimately, the Department has 

determined that its scarce resources are 

better allocated elsewhere than on the 

enforcement of the Persuader Rule. The 

Department has wide ranging priorities 

and responsibilities, including helping 

Americans find the jobs they need, 

closing the skills gap, protecting 

employees from hazardous working 

conditions, enforcing child labor 

protections, and many other critical 

initiatives. Among its other priorities, 

the Department promotes union 

democracy and financial integrity in 

private sector labor unions through 

standards for union officer elections and 

union trusteeships and safeguards for 

union assets, and it promotes labor 

union and labor-management 

transparency through reporting and 

disclosure requirements for labor unions 

and their officials, employers, labor 

relations consultants, and surety 

companies. Reporting by employers and 

labor relations consultants who make 

arrangements to persuade employees 

with regard to their rights to organize 

and bargain collectively is an important 

piece of this effort and DOL’s broader 

mission, but it is just one piece. 

Rescission of the expansion of the 

advice exemption will not change the 

Department’s robust enforcement of 

these core reporting requirements, 

which have protected the LMRDA’s 

vital objectives for decades. 

IV. Effect of Rescission 

The reporting requirements in effect 

under this rescission are the same as 

they existed before the rescission. The 

Forms and Instructions, available on the 

Department’s website, are those preexisting the Rule. These are the Forms 

and Instructions currently being used by 

filers, in light of the litigation and court 

order discussed in section 2(A), above. 

See National Federal of Independent 

Business v. Perez (N.D. Tex. 5:16-cv00066-c), Slip Op. p.89–90; 2016 WL 

3766121; 2016 WL 8193279. 

V. Analysis Conducted in Accordance 

With Executive Order 12866, 

Regulatory Planning and Review, 

Executive Order 13563, Improved 

Regulation and Regulatory Review, and 

Executive Order 13771, Reducing 

Regulation and Controlling Regulatory 

Costs 

Under Executive Order 12866, the 

Office of Management and Budget’s 

(OMB’s) Office of Information and 

Regulatory Affairs determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive Order and review by 

OMB. 58 FR 51735. Section 3(f) of 

Executive Order 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more, or 

adversely affects in a material way a 


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19The rulemaking record contains five comments 

that cite a study that supports these figures. Diana 

Furchtgott-Roth, The High Costs of Proposed New 

Labor-Law Regulations, MANHATTAN INSTITUTE, 

Jan. 2016. 

20The NPRM for the Persuader Rule proposed 

that non-filing entities would require an hour to 

read the instructions and to determine that the rule 

does not apply to them. It also determined that no 

‘‘initial familiarization’’ costs would be estimated. 

81 FR 16003. 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Id. OMB has determined that this 

final rule is a significant regulatory 

action under section 3(f)(1) of Executive 

Order 12866. 

Executive Order 13563 directs 

agencies to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; it is tailored to impose the least 

burden on society consistent with 

achieving the regulatory objectives; and 

in choosing among alternative 

regulatory approaches, the agency has 

selected the approach that maximizes 

net benefits. Executive Order 13563 

recognizes that some benefits are 

difficult to quantify and provides that, 

where appropriate and permitted by 

law, agencies may consider and discuss 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

A. The Need for Rulemaking 

As explained above in Part II, Section 

A, today’s final rule to rescind the 

Persuader Rule is part of the 

Department’s continuing effort to 

effectuate the reporting requirements of 

the LMRDA. The LMRDA generally 

reflects the obligation of unions and 

employers to conduct labormanagement relations in a manner that 

protects employees’ rights to choose 

whether to be represented by a union for 

purposes of collective bargaining. The 

LMRDA’s reporting provisions promote 

these rights by requiring unions, 

employers, and labor relations 

consultants to publicly disclose 

information about certain financial 

transactions, agreements, and 

arrangements. The Department believes 

that a fair and transparent government 

regulatory regime must consider and 

balance the interests of labor relations 

consultants, employers, labor 

organizations, their members, and the 

public. It should reflect close 

consideration of possible statutory 

interpretations and both direct and 

indirect burdens flowing from the Rule, 

particularly in sensitive areas, such as 

the attorney-client relationship. Any 

change to a labor relations consultant or 

employer’s recordkeeping, reporting and 

business practices should be based on a 

demonstrated and significant need for 

information, along with consideration of 

the burden associated with such 

reporting and any increased costs 

associated with the change. 

In its Notice of Proposed Rulemaking, 

the Department assumed the position 

that the rescission of the Persuader Rule 

would result in a burden reduction 

equal to the difference between the rule 

as it stood prior to the Persuader Rule 

and the Persuader Rule. 82 FR 26881. In 

utilizing this methodology, the 

Department estimated that the 

rescission of the Persuader Rule would 

result in annual cost savings of 

$1,198,714.50. 

In response to the Notice of Proposed 

Rulemaking, the Department received a 

number of comments disagreeing with 

the Department’s cost analysis. 

Specifically, commenters insisted that 

the Department failed to arrive at a 

realistic calculation of the actual cost of 

compliance and the cost of 

familiarization. A number of 

commenters pointed to a lack of 

definitiveness in the Persuader Rule in 

identifying whether a report would be 

required, who would be responsible for 

submitting a report, and whether 

sensitive issues would have to be 

disclosed through the information 

requested in the report. The commenters 

argued that these matters were 

significant determinations that would 

inevitably result in higher costs. 

Additionally, in an order granting the 

issuance of a preliminary injunction 

enjoining the Persuader Rule, the U.S. 

District Court for the Northern District 

of Texas addressed the burden of the 

Persuader Rule and the increased costs 

associated with its implementation. 

Though the district court did not 

conduct its own methodology, the court 

cited and relied upon a third-party 

report to conclude that the Persuader 

Rule ‘‘could cost the U.S. economy 

between $7.5 billion and $10.6 billion 

during the first year of implementation, 

and between $4.3 billion and $6.5 

billion per year thereafter; the total cost 

over a ten-year period could be 

approximately $60 billion—and this 

would not include the indirect 

economic effects of raising the cost of 

doing business in the United States.’’ 

Nat’l Fed. of Indep. Bus. v. Perez, Case 

No. 5:16-cv-00066-C, 2016 WL 3766121, 

at *15 (N.D. Tex. June 27, 2016).19

While the Department does not 

conclude that the Persuader Rule would 

have resulted in the burden identified 

by the NFIB court, the Department is 

cognizant of the concerns raised by the 

commenters in response to the NPRM 

and has thoroughly analyzed and 

examined these comments. After a 

thorough evaluation, the Department 

agrees that the previous figure failed to 

account for a number of significant 

considerations. 

Concerning burden, the overarching 

difficulty associated with the Persuader 

Rule was the broadening of persuader 

reporting to certain categories of 

indirect contact where the employer 

remained free to accept or reject the 

recommendations of the consultant. 

That increase in scope would have 

made it more difficult to determine 

whether a report was required and what 

information the report should contain. 

In particular, the Persuader Rule would 

have required close consideration of 

sensitive matters such as privilege and 

confidentiality that might have affected 

how information should be entered onto 

the forms. And filers would have 

required more time to review the 

instructions in detail because of the 

difficulty in accurately and 

comprehensively completing such 

complex forms.20 To the extent that the 

expanded reporting requirement would 

have potentially disclosed sensitive 

information or chilled efforts to seek 

help, the impact would have been 

greater and even more time would have 

been allocated to completing the forms. 

For all these reasons, the Department no 

longer believes it would be accurate to 

measure the reduced burden simply by 

comparing the burden figures in the 

Persuader Rule to the figures that it has 

replaced. 

B. Economic Analysis 

For the reasons discussed below, and 

as relevant here, the Department rejects 

the following assumptions as made in 

the Persuader Rule: 

• Non-filing employers, human 

resources firms, and law firms would 

have spent one hour in total reading 

instructions (10 minutes) and 

determining that the rule does not apply 

to them or their clients (50 minutes) (81 

FR 16003); 


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21Source: Bureau of Labor Statistics, 

Occupational Employment Statistics, May 2016 

National Employment and Wages Estimates. 

(https://www.bls.gov/oes/current/oes_nat.htm). 

• The number of employers that 

would have filed Form LM–10 reports 

would have been 2,777 (81 FR 16004); 

• The number of Form LM–10 reports 

filed would have been 2,777 (81 FR 

16004); 

• The total burden hours per Form 

LM–10 filer would have been 147 

minutes. (81 FR 16014); 

• The number of consultants that 

would have filed Form LM–20 reports 

would have been 358 (81 FR 16004); 

• The number of Form LM–20 reports 

filed would have been 4,194 (81 FR 

16004); 

• The total burden hours per Form 

LM–20 filer would have been 98 

minutes (81 FR 16012); 

• The number of consultants that 

would have filed Form LM–21 reports 

would have been 358 (81 FR 16004); 

• The number of Form LM–21 reports 

filed would have been 358 (81 FR 

16004); 

• Issues arising from the reporting 

requirements of the Form LM–21 would 

not have been appropriate for 

consideration under the Persuader Rule 

(81 FR 1600); 

As relevant here, the Department 

accepts the following assumptions made 

in the Persuader Rule: 

• Employers, business associations, 

and consultants (human resources firms, 

law firms, and labor relations 

consultants) would not have borne 

‘‘initial familiarization’’ costs (81 FR 

16003); 

• Non-filing entities would have 

comprised those employers, business 

associations, and consultants (human 

resources firms, law firms, and labor 

relations consultants) that are not 

otherwise estimated to be filing (81 FR 

16003); 

• The number of non-filing 

consultants would have been 39,298 (81 

FR 16016–17); 

• The number of non-filing employers 

would have been 185,060 (81 FR 16017); 

• Attorneys would have filed reports 

on behalf of consultants and employers 

(81 FR 16003); 

• The estimated recordkeeping and 

reporting costs should be based on 

Bureau of Labor Statistics (BLS) data of 

the average hourly wage of a lawyer, 

including benefits (81 FR 16003); 

• A lawyer (SOC 23–1011) has a 

fully-loaded wage of $114 (median 

hourly base wage of $56.81 plus fringe 

benefits and overhead costs of 100% of 

the base wage) 21

Based on the comments received, the 

Department makes the following 

assumptions: 

• Non-filing employers, human 

resources firms, and law firms would 

have spent 2.75 hours in total reading 

instructions (45 minutes) for the Form 

LM–10 or the Form LM–20 and 

determining that the rule does not apply 

to them or their clients (120 minutes); 

• The number of employers that 

would have filed Form LM–10 reports 

would have been 13,297; 

• The number of Form LM–10 reports 

filed would have been 13,297; 

• The total burden hours per Form 

LM–10 would have been 930 minutes; 

• The number of consultants that 

would have filed Form LM–20 reports 

would have been 2,149; 

• The number of Form LM–20 reports 

filed would have been 14,714; 

• The total burden hours per Form 

LM–20 would have been 900 minutes; 

• The number of consultants that 

would have filed Form LM–21 reports 

would have been 2,149; 

• The number of Form LM–21 reports 

filed would have been 2,149; 

• The total burden hours per Form 

LM–21 would have been 154.5 minutes. 

Based on the comments received, and 

upon review of the litigation, the 

Department concludes that the 

Persuader Rule underestimated the 

burden with regard to the amount of 

time necessary for non-filers to read the 

form and instructions, the number of 

filers of Form LM–10 and Form LM–20, 

and the number of hours necessary to 

complete these forms. It also erred in 

failing to estimate the increase in the 

number of Form LM–21 filers and the 

increased burden the Persuader Rule 

caused through the Form LM–21. 

The Burden on Non-Filers to Read the 

Forms 

In the Persuader Rule, non-filing 

entities (employers and law firms/ 

consultants) were estimated to need one 

hour in total to read the instructions (10 

minutes) and determine that the rule 

does not apply to them or their clients 

(50 minutes). 57 FR 16003, 16007. This 

was not accurate. ‘‘A more realistic 

assessment of the costs of these new 

forms to business would estimate a 

higher number of hours per firm, since 

businesses will need to spend time each 

year determining whether they are 

obligated to file.’’ [Diana Furtchgott 

Roth, The High Costs of Proposed New 

Labor-Law Regulations, Manhattan 

Institute, Jan. 2016, at 8 n.16]. The U.S. 

District Court accepted as fact that the 

Department failed to adequately 

consider potential filers, concluding 

that ‘‘[t]he department should have 

examined what the cost would be if all 

potentially affected employers and 

advisers were to file,’’ and therefore that 

the Department did not provide ‘‘an 

honest assessment of the potential effect 

of the proposed rule.’’ Nat’l Fed. of 

Indep., 2016 WL 3766121, at *15. 

The Department estimates that, under 

the Persuader Rule, non-filing entities 

would have spent 2.75 hours total 

reading the instructions of the Form 

LM–10 or the Form LM–20 (45 minutes) 

to determine that the rule does not 

apply to them or their clients (120 

minutes). 

The additional reading time would 

have been necessary because of the 

vagueness of the Persuader Rule. The 

Persuader Rule broadened persuader 

reporting to certain categories of 

indirect contact where the employer 

remained free to accept or reject the 

recommendations of the consultant. 

That increase in scope would have 

made it more difficult to determine 

whether a report was required. One 

commenter reported, for example, 

‘‘DOL’s new Rule creates a regulatory 

scheme that is so confusing and 

convoluted, with so many illogical 

exceptions and mandates, that neither 

employers nor their advisors, including 

labor law experts, can understand how 

to comply with it.’’ [Associated Builders 

and Contractors of Arkansas LMSO– 

2017–0001–1096, p.13]. Another 

commenter noted, ‘‘most of the cost of 

compliance will come from learning 

about the new rule and preparing the 

information to be recorded on the 

form.’’ [Furchgott-Roth, p7, see fn 16.] 

Because the rule was vague as to the 

activities that resulted in reporting 

obligations, it would have taken more 

than an hour for an employer or a 

consultant to read, understand, and 

apply it to determine whether filing was 

required. 

Besides vagueness, the sensitivity of 

the information to be included on the 

form would also have increased the 

amount of time required of non-filers. 

The Persuader Rule would have 

required close consideration of sensitive 

matters such as privilege and 

confidentiality that might have affected 

how information should be entered onto 

the forms. And filers would have 

required more time to review the 

instructions in detail because of the 

difficulty in accurately determining 

whether a report was owed. To the 

extent that the expanded reporting 

requirement would have potentially 

disclosed sensitive information or 

chilled efforts to seek help, the impact 

would have been greater and even more 

time would have been allocated to the 

determination. The Department now 


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22The Department separately estimated the 

number of reports attributable to seminars. 81 FR 

16005. 

23The Persuader Rule explained the basis of the 

determination that 2,090 Form LM–20 reports 

would report the holding of a seminar. 81 FR 16004. 

To estimate the number of reportable seminars the 

Department utilized the reporting data for ‘‘business 

associations’’ from the U.S. Census Bureau’s North 

American Industry Classification System Codes 

(NAICS), NAICS 813910, which includes trade 

associations and chambers of commerce. Of the 

15,808 total entities in this category, the 

Department assumed that each of the 1,045 business 

associations that operate year round and have 20 or 

more employees would sponsor, on average, one 

union avoidance seminar for employers. 

Additionally, the Department assumed that all of 

the 1,045 identified business associations would 

contract with a law or consultant firm to conduct 

that seminar. Each of these parties would file a 

report, resulting in 2,090 reports. 

24The Persuader Rule explained the relationship 

between the number of filers and the number of 

reports. The Department used its existing data on 

Form LM–20 reports. It determined that 

consultants, including law firms, file an annual 

average of approximately 5.875 reports a year. 81 

FR 16004. Having determined the number of 

reports, the Department derived the number of 

filers. 

25The number of reports of seminars are not 

counted when calculating the number of filers 

because, as determined in the Persuader Rule, the 

same law firms and consultants that handle 

organizing campaigns will be the ones that present 

(and report) seminars. 81 FR 16005. 

concludes that non-filers would have 

spent 2.75 hours in total reading 

instructions (45 minutes) and 

determining that the rule does not apply 

to them or their clients (120 minutes). 

The Department has not altered the 

time spent by non-filing employers on 

reading the Form LM–21 to determine 

that filing is not required. The review 

time spent on reading the Form LM–20 

will provide employers with 

information on the regulatory regime 

and non-filers of Form LM–10 will have 

no obligation to file the Form LM–21. 

The Number of Filers 

The Department erred in its estimate 

of the number of filers. The Department 

had largely derived its estimates of the 

number of filers of both the LM–20 and 

LM–10 forms from the total number of 

representation and decertification 

elections supervised by the NLRB and 

the NMB. The Department assumed 

that, in 75% of such cases, the employer 

would utilize a consultant who will 

engage in reportable activity.22 [81 FR 

15964–65, 16004]. The Department 

considered only representation 

elections, but acknowledged that other 

reports will result from ‘‘activities 

related to collective bargaining and 

other union avoidance efforts outside of 

representation petitions, such as 

organizing efforts that do not result in 

the filing of a representation petition.’’ 

Id at 160004. The burden analysis 

would have benefited from the 

Department estimating a number from 

this acknowledged additional source of 

reports. Today, the Department 

estimates that five times the number of 

reports as those coming from election 

petitions would have resulted from nonelection cases. As noted by the 

Department in the Persuader Rule, there 

is no reliable basis for estimating reports 

in the many areas outside of 

representation petitions. A commenter 

provided, however, ‘‘given the narrow 

view the Department intends to take 

with respect to the advice exemption 

and the broad view of reporting 

obligations, it is likely that the vast 

majority of reportable activity will not 

involve representation or decertification 

campaigns at all.’’ [U.S. Chamber of 

Commerce LMSO–2017–0001–1147]. As 

2,104 reports are associated with 

representation elections we assume that 

there would have been another 10,520 

(2,104 × 5 = 10,520) associated with 

non-election activity, thus making the 

non-election activity akin to a ‘‘vast 

majority.’’ See id.; 81 FR 16004. Adding 

this to the election related reports 

equals a total of 12,624 reports (2,104 + 

10,520 = 12,624). Adding this to the 

projected number of seminars, which is 

2,090, the total number of reports would 

have been 14,714.23 See 81 FR 16005. 

Assuming that there are 5.875 reports 

per filer, a determination made by the 

Persuader Rule (81 FR 16005),24 the 

total number of Form LM–20 filers 

would have been 2,149 (12,624 \ 5.875 

= 2,148.7).25 This is an increase from the 

358 filers determined by the Persuader 

Rule and is the result of counting the 

number of reports arising from nonrepresentation/decertification persuader 

activity. 

To determine the number of Form 

LM–10 filers, the Department combines 

the estimated 12,624 non-seminar 

persuader agreements between 

employers and law firms or other 

consultant firms, calculated for the 

Form LM–20, with 672.6 (the annual 

average number of Form LM–10 reports 

registered from FY 10–14 submitted 

pursuant to sections 203(a)(1)–(3), the 

non-persuader agreement or 

arrangement provisions). Seminar 

persuader agreements are not included 

because employers who attend a 

seminar were not required, under the 

Persuader Rule, to file a Form LM–10. 

This yields a total estimate of 

approximately 13,297 revised Form 

LM–10 reports (12,624 + 672.6 = 

13,296.6) and thus 13,297 form LM–10 

filers. 

Firms that file LM–20 forms are also 

required by law to file LM–21 forms. 

‘‘Many law firms have never filed an 

LM–21 form because of the previous 

Interpretation from the Department. 

Under the New Interpretation, such 

firms would be required to file LM–21 

forms with the Department.’’ [Worklaw 

Network, LMSO–2017–0001–0253, p10]. 

As each filer of Form LM–20 reporting 

persuader activity must also file a Form 

LM–21, so long as receipts and 

disbursements were attributable to the 

persuader agreement or arrangement, 

the Department estimates that 2,149 

Form LM–21 reports will be filed. 

Time Necessary To Complete the Forms 

The Persuader Rule underestimated 

the time necessary for filers to complete 

the forms. The rule’s complexities not 

only increased the amount of time 

necessary for non-filing entities to read 

the instructions to understand whether 

to file, it also increased the amount of 

time it would require of filing entities to 

complete the form. As one commenter 

stated ‘‘the lawyer or consultant must 

guess as to whether the client’s object, 

in whole or in part, directly or 

indirectly, was to persuade or influence 

employees.’’ [Seyfarth Shaw, LMSO– 

2017–0001–1062, p4]. As the table 

below shows, for Form LM–10, 

maintaining and gathering records and 

reading the instructions to determine 

applicability of the form and how to 

complete it was estimated by the 

Persuader Rule to take a total of 50 

minutes. Upon reflection and review of 

the comments, it is clear that the time 

would have been much higher: A total 

of 306 minutes. The increased time was 

necessary because of the difficulty in 

categorizing activity as advice or 

persuader activity. ‘‘Instructions . . . 

meant to clarify the rule demonstrate 

the lack of a clear distinction between 

reportable ‘persuader activity’ and 

exempt ‘advice’ under the new rule.’’ 

House Report 114–739 (REPORT 

together with MINORITY VIEWS [To 

accompany H.J. Res. 87) LMSO–2017– 

0001–1151]. This lack of clarity 

increased the amount of time it would 

have taken to complete the Form LM– 

10 and Form LM–20. 

In addition, the difficulty in 

discerning state of mind would have 

exacerbated the difficulty in completing 

the forms. The reporting obligation of an 

employer and its consultant would have 

turned on the subjectively perceived 

determination of each as to whether the 

policies developed were for the purpose 

of persuading employees with regard to 

unionizing and collective bargaining. As 

a commenter noted, ‘‘In reality, there is 

no way to make this determination with 

any degree of confidence—particularly 

where both the employer and the 


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26The Form LM–21’s Part B (Statement of 

Receipts) requires the filing law firm/consultant to 

report all receipts from employers in connection 

with labor relations advice or services regardless of 

the purposes of the advice or services. Part C 

(Statement of Disbursements) requires the filer to 

report all disbursements made by the reporting 

organization in connection with labor relations 

advice or services rendered to the employers listed 

in Part B. 

27OMB Circular No. A–4, ‘‘Regulatory Analysis,’’ 

M–03–21 (Sept. 2003). 

28Source: U.S. Census Bureau, Statistics of U.S. 

Businesses, 2015. (https://www.census.gov/data/ 

tables/2015/econ/susb/2015-susb-annual.html). 

29Source: U.S. Census Bureau, Statistics of U.S. 

Businesses, 2015. (https://www.census.gov/data/ 

tables/2015/econ/susb/2015-susb-annual.html). 

30The Department’s methodology for estimating 

185,060 is explained in the 2016 Final Rule, 81 FR 

at 16016–16017. In summary, the estimate is based 

on multiplying the ratio of estimated filing 

employers to filing consultants (7.76) by the total 

number of non-filing law firms and consultants 

(23,848), which is composed of the number of labor 

and employment firms (17,387) and human 

resources consultants (6,461). Other methodologies 

not described in detail herein can be referenced in 

the 2016 final rule. 

31Source: Bureau of Labor Statistics, 

Occupational Employment Statistics, May 2016 

National Employment and Wages Estimates. 

(https://www.bls.gov/oes/current/oes_nat.htm). 

32Source: Bureau of Labor Statistics, 

Occupational Employment Statistics, May 2016 

National Employment and Wages Estimates. 

(https://www.bls.gov/oes/current/oes_nat.htm). 

lawyer/consultant have to make their 

own independent determination as to 

whether the work performed is 

reportable.’’ [Proskauer, LMSO–2017– 

0001–0851, p10]. Although ‘‘intent to 

persuade’’ is and has always been an 

element in Form LM–20 and Form LM– 

10 reporting, the structure of the 

Persuader Rule made this difficult 

determination more frequent. Under the 

accept-or-reject test, issues of intent 

need not be considered absent direct 

contact between consultant and 

employee. Without such a clear 

delineation, the determination of intent 

would have come up routinely. This 

analysis is complicated where here, by 

definition, there are multiple parties 

involved, each with its own views and 

its own purpose in making the 

arrangement or agreement. As a result, 

in the Form LM–20 and LM–10 tables 

below, the Department increased the 

time estimated for the categories of 

questions that require analysis of the 

terms, objects and activities of the 

arrangement or agreement. 

The Form LM–21 

The burden of the Form LM–21 would 

also have been increased by the 

Persuader Rule. The Department 

recognizes that many difficult questions 

with regard to identifying persuader 

activity and how to fill out the form 

would have been undertaken for the 

Form LM–20 and resolved by the time 

the Form LM–21 must be completed. 

Nevertheless, the completion of the 

Form LM–21 would have been 

complicated by the Persuader Rule. The 

instructions required consultants to 

make efforts to allocate between 

‘‘receipts in connection with labor 

relations advice or services’’ (which are 

subject to a reporting obligation) and 

other receipts for employers other than 

persuader clients. The same is true for 

disbursements. See Form LM–21, 

sections B and C. 26 Nevertheless, the 

term ‘‘advice’’ was narrowed by the 

Persuader Rule, with no explanation of 

how the revised definition applied to 

the Form LM–21. Under the Form LM– 

21, receipts and disbursement in 

connection with ‘‘labor relations advice 

and services,’’ must be reported. Under 

the reporting structure, labor relations 

advice is distinct from persuader 

activity but under the Persuader Rule 

there was no category of activity that 

was persuasive but nevertheless exempt 

(as advice). Further complicating the 

matter, the Department gave no 

guidance as to whether the revised 

definition of ‘‘advice’’ applied, or did 

not apply, to the Form LM–21. This lack 

of clarity increases the burden of the 

Form LM–21. Completing the form 

would have consumed 154.5 minutes. 

The analysis covers a 10-year period 

(2018 through 2027) to ensure it 

captures major cost savings that accrue 

over time. In this analysis, we have 

sought to present cost savings 

discounted at 7 and 3 percent, 

respectively, following OMB 

guidelines.27

The Department has undertaken an 

analysis of the cost savings to covered 

employers, labor relations consultants, 

and others associated with complying 

with the requirements which are being 

rescinded by this rule. These cost 

savings are associated with both 

reporting and recordkeeping for Forms 

LM–10, LM–20, and LM–21. 

The Persuader Rule was enjoined 

before it became applicable, so if the 

impacts of this final rule are assessed 

relative to current practice, the result 

would be that there is no impact. If, on 

the other hand, the Rule’s effects are 

assessed relative to a baseline in which 

regulated entities comply with the Rule, 

the rescission would result in 

annualized cost savings of $92.89 

million (with a 3 and 7 percent discount 

rate). 

Under the Rule, employers would 

have needed to devote additional time 

and resources to the task of determining 

their responsibilities for complying with 

the rule. The Department used: (1) The 

number of private sector firms with 5 or 

more employees in addition to the 

number of consulting and lawyer 

offices; (2) the median hourly wage of a 

chief executive and a lawyer; and (3) the 

number of hours necessary to comply 

with the Rule. According to data from 

the U.S. Census Bureau’s Statistics of 

U.S. Businesses, in 2015, there were 

5,900,731 private firms in the United 

States. Of these businesses, 2,256,994 

had five or more employees.28 There are 

6,461 Human Resource Management 

Consultant service firms (NAICS code 

511612) and 165,435 Offices of Lawyers 

firms (NAICS code 541110).29

The Department determined that 

185,060 30 of the 2,256,994 private 

sector firms with five or more 

employees would have to review the 

rule and determine whether or not they 

have any obligation to file a Form LM– 

10 report. For this analysis, we 

estimated that for each of the 185,060 

firms, a labor relations specialist (SOC 

13–1075) with a fully-loaded wage of 

$60 (median hourly base wage of $29.96 

plus fringe benefits and overhead costs 

of 100% of the base wage) would have 

spent 2.75 hours determining the firm’s 

obligations relating to Form–10. The 

annualized cost for assessing 

compliance requirements for these 

potential filers would have been $30.53 

million with 3 and 7 percent discount 

rate (185,060 × $60 × 2.75 hours). 

Once these employers determined 

that they needed to file Form LM–10, 

they would have also incurred reporting 

and recordkeeping costs associated with 

filling out the form. The Department 

estimates lawyers (SOC 23–1011) at a 

fully-loaded wage of $114 (median 

hourly base wage of $56.81 plus fringe 

benefits and overhead costs of 100% of 

the base wage) 31 for 13,297 firms would 

have spent 15.5 hours to complete the 

form. Using the methodology discussed 

above, the annualized recordkeeping 

cost for those who actually file Form 

LM–10 would therefore have been 

$23.50 million with 3 and 7 percent 

discount rate (13,297 × $114 × 15.5 

hours). 

The Department estimates that 39,298 

of 171,896 consulting and law offices 

would have to review the rule to 

determine whether or not they have any 

obligation to file a Form LM–20 report. 

For this analysis, we assume that for the 

39,298 consulting and law offices, a 

lawyer with a fully-loaded wage of $114 

(median hourly base wage of $56.81 

plus fringe benefits and overhead costs 

of 100% of the base wage) 32 would have 

spent 2.75 hours determining their 

obligations relating to Form-20. The 

annualized cost for assessing 


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compliance requirements for potential 

Form LM–20 filers would have been 

$12.32 million with 3 and 7 percent 

discount rate (39,298 × $114 × 2.75 

hours). 

Once the consulting and law offices 

determined that they needed to fill out 

Form LM–20, they would have also 

incurred reporting and recordkeeping 

costs associated with completing the 

form. The Department assumes labor 

relations specialists completing 14,714 

forms would take 15 hours to complete 

the form. Using the methodology 

discussed above, the annual 

recordkeeping cost for those who 

actually file form LM–20 would 

therefore have been $25.16 million with 

3 and 7 percent discount rate (14,714 × 

$114 × 15 hours). 

The Department estimates that 39,298 

consulting and law offices would have 

to review the rule to determine whether 

or not they have any obligation to file 

a Form LM–21 report. For this analysis, 

we assume that, for the 39,298 

consulting and law offices, a lawyer 

(SOC 23–1011) with a fully-loaded wage 

of $114 would have spent ten minutes 

determining the office’s obligations 

relating to Form-21. The annualized cost 

for assessing compliance requirements 

for potential Form LM–21 filers would 

have been $0.75 million with 3 and 7 

percent discount rate (39,298 × $114 × 

0.167 hours). 

Once the consulting and law offices 

determined that they needed to fill out 

Form LM–21, they would have also 

incurred reporting and recordkeeping 

costs associated with completing the 

form. The Department assumes labor 

relations specialists completing 2,149 

forms would take 2.58 hours to 

complete the form. Using the 

methodology discussed above, the 

annual recordkeeping cost for those who 

actually file Form LM–21 would 

therefore have been $0.63 million with 

3 and 7 percent discount rates (2,149 × 

$114 × 2.58 hours). 

Summary 

The total annualized cost savings 

associated with this rule can be 

calculated by adding together the 

savings to potential filers of both Form 

LM–10, Form LM–20, and Form LM–21. 

There are also savings to actual filers of 

Form LM–10, Form LM–20, and Form 

LM–21. As shown in Table A, the total 

annualized cost savings are $92.89 

million with a discount rate of 3 and 7 

percent. For a perpetual time horizon, 

the annualized cost savings are the same 

at $92.89 million with a discount rate of 

7 percent. 

TABLE A—TOTAL COST SAVINGS

Cost savings summary 

10-Year annualization Perpetual 

annualization 

7% Discount 

rate 

3% Discount 

rate 

7% Disount 

rate 

Form LM–10 Potential Filers (determining whether to file Form–10) ......................................... $30,534,900 $30,534,900 $30,534,900 

Reporting and Recordkeeping for Form LM–10 reports ............................................................. 23,495,799 23,495,799 23,495,799 

Form LM–20 Potential Filers (determining whether to file Form–20) ......................................... 12,319,923 12,319,923 12,319,923 

Reporting and Recordkeeping for Form LM–20 reports ............................................................. 25,160,940 25,160,940 25,160,940 

Form LM–21 Potential Filers (determining whether to file Form–21) ......................................... 748,155 748,155 748,155 

Reporting and Recordkeeping for Form LM–21 reports ............................................................. 632,064 631,181 631,181 

Total Cost Savings ............................................................................................................... 92,891,781 92,890,898 92,890,898 

TABLE B—FORM LM–10 RECORDKEEPING AND REPORTING BURDEN

Burden description: 

Form LM–10 Section of form 

Persuader rule 

recurring 

burden 

(in minutes) 

Recurring 

burden hours 

(in minutes) 

revised 

Maintaining and gathering records ............................................................ Recordkeeping Burden .................... 25 126 

Reading the instructions to determine applicability of the form and how 

to complete it.

Reporting Burden ............................ 25 180 

Reporting LM–10 file number .................................................................... Item 1.a ........................................... 0.5 0.5 

Identifying if report filed under a Hardship Exemption .............................. Item 1.b ........................................... 0.5 0.5 

Identifying if report is amended ................................................................. Item 1.c ............................................ 0.5 0.5 

Fiscal Year Covered .................................................................................. Item 2 .............................................. 0.5 0.5 

Reporting employer’s contact information ................................................. Item 3 .............................................. 2 2 

Reporting president’s contact information if different than 3 .................... Item 4 .............................................. 2 2 

Identifying Other Address Where Records Are Kept ................................ Item 5 .............................................. 2 2 

Identifying where records are kept ............................................................ Item 6 .............................................. 0.5 2 

Type of Organization ................................................................................. Item 7 .............................................. 0.5 0.5 

Reporting union or union official’s contact information (Part A) ............... Item 8 .............................................. 4 4 

Date of Part A payments ........................................................................... Item 9.a ........................................... 0.5 0.5 

Amount of Part A payments ...................................................................... Item 9.b ........................................... 0.5 0.5 

Kind of Part A payments ........................................................................... Item 9.c ............................................ 0.5 0.5 

Explaining Part A payments ...................................................................... Item 9.d ........................................... 5 5 

Identifying recipient’s name and contact information ................................ Item 10 ............................................ 4 4 

Date of Part B payments ........................................................................... Item 11.a ......................................... 0.5 0.5 

Amount of Part B payments ...................................................................... Item 11.b ......................................... 0.5 0.5 

Kind of Part B payments ........................................................................... 11.c .................................................. 0.5 0.5 

Explaining Part B payments ...................................................................... 11.d .................................................. 5 5 

Part C: Identifying object(s) of the agreement or arrangement ................ Part C .............................................. 1 360 


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TABLE B—FORM LM–10 RECORDKEEPING AND REPORTING BURDEN—Continued 

Burden description: 

Form LM–10 Section of form 

Persuader rule 

recurring 

burden 

(in minutes) 

Recurring 

burden hours 

(in minutes) 

revised 

Identifying name and contact information for individual with whom 

agreement or arrangement was made.

Item 12 ............................................ 4 4 

Indicating the date of the agreement or arrangement .............................. Item 13.a ......................................... 0.5 0.5 

Detailing the terms and conditions of agreement or arrangement ........... Item 13.b ......................................... 5 90

Identifying specific activities to be performed ........................................... Item 14.a ......................................... 5 60.5 

Identifying period during which performed ................................................ Item 14.b ......................................... 0.5 0.5 

Identifying the extent performed ................................................................ Item 14.c .......................................... 1 1 

Identifying name of person(s) through whom activities were performed .. Item 14.d ......................................... 2 2 

Identify the Subject Group of Employee(s) ............................................... Item 14.e ......................................... 5 5 

Identify the Subject Labor Organization(s) ................................................ Item 14.f .......................................... 1 1 

Indicating the date of each payment pursuant to agreement or arrangement.Item 15.a ......................................... 0.5 0.5 

Indicating the amount of each payment .................................................... Item 15.b ......................................... 0.5 0.5 

Indicating the kind of payment .................................................................. Item 15.c .......................................... 0.5 0.5 

Explanation for the circumstances surrounding the payment(s) ............... Item 15.d ......................................... 5 30 

Part D: Identifying purpose of expenditure(s) ........................................... Part D .............................................. 1 1 

Part D: Identifying recipient’s name and contact information ................... Item 16 ............................................ 4 4 

Date of Part D payments ........................................................................... Item 17.a ......................................... 0.5 0.5 

Amount of Part D payments ...................................................................... Item 17.b ......................................... 0.5 0.5 

Kind of Part D payments ........................................................................... Item 17.c .......................................... 0.5 0.5 

Explaining Part D payments ...................................................................... Item 17.d ......................................... 5 5 

Checking Responses ................................................................................. N/A ................................................... 5 5 

Signature and verification .......................................................................... Items 18–19 ..................................... 20 20 

Total Recordkeeping Burden Hour Estimate Per Form LM–10 Filer ........ .......................................................... 25 126 

Total Reporting Burden Hour Estimate Per Form LM–10 Filer ................ .......................................................... 122 804 

Total Burden Estimate Per Form LM–10 Filer .......................................... .......................................................... 147 930 

TABLE C—FORM LM–20 RECORDKEEPING AND REPORTING BURDEN

Burden description: 

Form LM–20 Section of revised form 

Persuader rule 

recurring 

burden 

(in minutes) 

Recurring 

burden hours 

(in minutes) 

revised 

Maintaining and gathering records ............................................................ Recordkeeping Burden .................... 15 126 

Reading the instructions to determine applicability of the form and how 

to complete it.

Reporting Burden ............................ 20 180 

Reporting LM–20 file number .................................................................... Item 1.a ........................................... 0.5 0.5 

Identifying if report filed under a Hardship Exemption .............................. Item 1.b ........................................... 0.5 0.5 

Identifying if report is amended ................................................................. Item 1.c ............................................ 0.5 0.5 

Reporting filer’s contact information .......................................................... Item 2 .............................................. 2 2 

Identifying Other Address Where Records Are Kept ................................ Item 3 .............................................. 2 2 

Date Fiscal Year Ends ............................................................................... Item 4 .............................................. 0.5 0.5 

Type of Person .......................................................................................... Item 5 .............................................. 0.5 0.5 

Full Name and Address of Employer ........................................................ Item 6 .............................................. 10 10 

Date of Agreement or Arrangement .......................................................... Item 7 .............................................. 0.5 0.5 

Person(s) Through Whom Agreement or Arrangement Made .................. Items 8(a) and (b) ........................... 2 2 

Object of Activities ..................................................................................... Item 9 .............................................. 1 360 

Terms and Conditions ............................................................................... Item 10 ............................................ 5 120 

Nature of Activities ..................................................................................... Item 11.a ......................................... 5 61 

Period During Which Activity Performed ................................................... Item 11.b ......................................... 0.5 0.5 

Extent of Performance ............................................................................... Item 11.c .......................................... 0.5 0.5 

Name and Address of Person Through Whom Performed ....................... Items 11.d ........................................ 2 2 

Identify the Subject Group of Employee(s) ............................................... Item 12.a ......................................... 5 5 

Identify the Subject Labor Organization(s) ................................................ Item 12.b ......................................... 1 1 

Checking Responses ................................................................................. N/A ................................................... 5 5 

Signature and verification .......................................................................... Items 13–14 ..................................... 20 20 

Total Recordkeeping Burden Hour Estimate Per Form LM–20 Filer ........ .......................................................... 15 126 

Total Reporting Burden Hour Estimate Per Form LM–20 Filer ................ .......................................................... 83 774 

Total Burden Estimate Per Form LM–20 Filer .......................................... .......................................................... 98 900 


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33The annualized cost savings (with a 7 percent 

discount rate) for an employer from relieving the 

reporting and recordkeeping requirements for Form 

LM–10 is $1,932 ($60 × 2.75 hours + $114 × 15.5 

hours). 

34The annualized cost savings (with a 7 percent 

discount rate) for a consulting and law office from 

relieving the reporting and recordkeeping 

requirements for Form LM–20 and Form LM–21 is 

$2,337 ($114 × 17.75 hours + $114 × 2.747 hours). 

TABLE D—FORM LM–21 RECORDKEEPING AND REPORTING BURDEN

Burden Description 

Form LM–21 Section of form 

Persuader rule 

recurring 

burden 

(in minutes) 

Recurring 

burden hours 

(in minutes) 

revised 

Maintaining and gathering records ............................................................ Recordkeeping Burden .................... 10 10 

Reading the instructions to determine applicability of the form and how 

to complete it.

Reporting Burden ............................ 10 10 

Reporting LM–21 file number .................................................................... Item 1 .............................................. 0.5 0.5 

Period covered by report ........................................................................... Item 2 .............................................. 0.5 0.5 

Part A: Reporting filers information ........................................................... Item 3 .............................................. 0.5 0.5 

Identifying Other Address where Records Are Kept ................................. Item 4 .............................................. 0.5 0.5 

Part B: Identifying Employer Name and Address ..................................... Item 5a ............................................ 0.5 120 

Termination Date ....................................................................................... Item 5b ............................................ 0.5 0.5 

Amount of Receipts ................................................................................... Item 5c ............................................. 0.5 0.5 

Total of Receipts from All Employers ........................................................ Item 6 .............................................. 0.5 0.5 

Part C: Disbursements to Officers and Employees .................................. Item 7 .............................................. ........................ ........................

Name(s) ..................................................................................................... Item 7a ............................................ 0.5 0.5 

Salary ......................................................................................................... Item 7b ............................................ 0.5 0.5 

Expenses ................................................................................................... Item 7c ............................................. 0.5 0.5 

Total for Each Officer and Employee ........................................................ Item 7d ............................................ 0.5 0.5 

Total Disbursements to All Officers and Employees ................................. Item 8 .............................................. 1 1 

Office and Administrative Expense ........................................................... Item 9 .............................................. 0.5 0.5 

Publicity ...................................................................................................... Item 10 ............................................ 0.5 0.5 

Fees for Professional Services .................................................................. Item 11 ............................................ 0.5 0.5 

Loans Made ............................................................................................... Item 12 ............................................ 0.5 0.5 

Other Disbursements ................................................................................. Item 13 ............................................ 0.5 0.5 

Total Disbursements for Reporting Period ................................................ Item 14 ............................................ 1 1 

Part D: Schedule of Disbursements for Reportable Activity ..................... .......................................................... ........................ ........................

Name of Employer ..................................................................................... Item 15a .......................................... 0.5 0.5 

Trade Name (if applicable) ........................................................................ Item 15b .......................................... 0.5 0.5 

Identify to whom payment was made ........................................................ Item 15c ........................................... 0.5 0.5 

Amount of Payment ................................................................................... Item 15d .......................................... 0.5 0.5 

Purpose of Payment .................................................................................. Item 15e .......................................... 0.5 0.5 

Total Disbursements for Reporting Period ................................................ Item 16 ............................................ 1 1 

President Signature and Date ................................................................... Item 17 ............................................ 0.5 0.5 

Treasurer Signature and Date ................................................................... Item 18 ............................................ 0.5 0.5 

Total Burden Estimate Per Form LM–21 Filer .......................................... .......................................................... 35 154.5 

VI. Regulatory Flexibility Analysis 

(RFA) 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121 (March 29, 1996), 

requires federal agencies engaged in 

rulemaking to consider the impact of 

their proposals on small entities, to 

consider alternatives to minimize that 

impact, and to solicit public comment 

on their analyses. The RFA requires the 

assessment of the impact of a regulation 

on a wide range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. Agencies 

must determine whether a proposed or 

final rule would have a significant 

economic impact on a substantial 

number of those small entities. 5 U.S.C. 

603 and 604. As part of a regulatory 

proposal, the RFA requires a federal 

agency to prepare, and make available 

for public comment, an initial 

regulatory flexibility analysis that 

describes the impact of the proposed 

rule on small entities. 5 U.S.C. 603(a). 

The Final Rule will result in cost 

savings to small consultants and 

employers because it contains no new 

collection of information and relieves 

the additional burden that would have 

been imposed upon employers and 

labor relations consultants by the 

regulations published on Mar. 24, 2016. 

From the regulatory impact analysis 

above, the annualized cost savings per 

employer who filed Form LM–10 are 

estimated at $1,932.33 The annualized 

cost savings per labor relation 

consultant who filed Form LM–20 and 

Form LM–21 is $2,337.34 The cost 

savings to small entities, however, are 

not significant and below one percent of 

their annual gross revenues. The average 

annual gross revenue for the smallest 

businesses with 5 to 9 employees ranges 

from $389,846 for Accommodation and 

Food Services (NAICS code: 11) to $4.91 

million for Wholesale Trade (NAICS 

code: 53). Therefore, the Department 

certifies that this rule does not have a 

significant economic impact on a 

substantial number of small entities. 

VII. Paperwork Reduction Act (PRA) 

The Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq., provides 

that no person is required to respond to 

a collection of information unless it 

displays a valid OMB control number. 

In order to obtain PRA approval, a 

Federal agency must engage in a number 

of steps, including estimating the 

burden the collection places on the 

public and seeking public input on the 

proposed information collection. 

This rule contains no new 

information collection requirements for 

purposes of the Paperwork Reduction 

Act of 1995 (PRA) (44 U.S.C. 3501 et 

seq.). The Department notes that, 

consistent with the previously 

mentioned injunction, the agency has 

already amended the information 

collection approval for Forms LM–10 

and LM–20 and their instructions to 

reapply the pre-2016 versions. When 


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issuing its approval, the OMB issued 

clearance terms providing the 

previously approved versions of these 

forms will remain in effect until further 

notice. See ICR Reference Number 

201604–1245–001. 

As the rule still requires an 

information collection, the Department 

is submitting, contemporaneous with 

the publication of this document, an 

information collection request (ICR) to 

revise the PRA clearance to address the 

clearance term. A copy of this ICR, with 

applicable supporting documentation, 

including among other things a 

description of the likely respondents, 

proposed frequency of response, and 

estimated total burden may be obtained 

free of charge from the RegInfo.gov 

website at https://www.reginfo.gov/ 

public/do/PRAViewICR?ref_

nbr=201710-1245-001 (this link will 

only become active on the day following 

publication of this document) or from 

the Department by contacting Andrew 

Davis on 202–693–0123 (this is not a 

toll-free number) / email: OLMS-Public@

dol.gov. 

Type of Review: Revision of a 

currently approved collection. 

Agency: Office of Labor-Management 

Standards. 

Title: Labor Organization and 

Auxiliary Reports. 

OMB Number: 1245–0003. 

Affected Public: Private Sector— 

businesses or other for-profits and notfor-profit institutions. 

Total Estimated Number of 

Respondents: 2,488,213. 

Number of Annual Responses: 

2,488,528. 

Frequency of Response: Varies. 

Estimated Total Annual Burden 

Hours: 6,362,032. 

Estimated Total Annual Other Burden 

Cost: $0. 

VIII. Regulatory Impact 

A. Unfunded Mandates Reform 

This rule does not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

and tribal governments, in the aggregate, 

of $100 million or more, or in increased 

expenditures by the private sector of 

$100 million or more. 

B. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This rule will not 

result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of the United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

List of Subjects in 29 CFR Parts 405 and 

406 

Labor management relations, 

Reporting and recordkeeping 

requirements. 

Text of Rule 

Accordingly, for the reasons provided 

above, the Department amends parts 405 

and 406 of title 29, chapter IV of the 

Code of Federal Regulations as set forth 

below: 

PART 405—EMPLOYER REPORTS 

■ 1. The authority citation for part 405 

continues to read as follows: 

Authority: Secs. 203, 207, 208, 73 Stat. 

526, 529 (29 U.S.C. 433, 437, 438); 

Secretary’s Order No. 03–2012, 77 FR 69376, 

November 16, 2012. 

§ 405.5 [Amended] 

■ 2. Amend § 405.5 by removing the 

phrase ‘‘the instructions for Part A of 

the Form LM–10’’ and adding in its 

place ‘‘the second paragraph under the 

instructions for Question 8A of Form 

LM–10’’. 

§ 405.7 [Amended] 

■ 3. Amend § 405.7 by removing the 

phrase ‘‘Part D of the Form LM–10’’ and 

adding in its place ‘‘Question 8C of 

Form LM–10’’. 

PART 406—REPORTING BY LABOR 

RELATIONS CONSULTANTS AND 

OTHER PERSONS, CERTAIN 

AGREEMENTS WITH EMPLOYERS 

■ 4. The authority citation for part 406 

continues to read as follows: 

Authority: Secs. 203, 207, 208, 73 Stat. 

526, 529 (29 U.S.C. 433, 437, 438); 

Secretary’s Order No. 03–2012, 77 FR 69376, 

November 16, 2012. 

■ 5. Amend § 406.2(a) by revising the 

last two sentences of the paragraph to 

read as follows: 

§ 406.2 Agreement and activities report. 

(a) * * * The report shall be filed 

within 30 days after entering into an 

agreement or arrangement of the type 

described in this section. If there is any 

change in the information reported 

(other than that required by Item C. 10, 

(c) of the Form), it must be filed in a 

report clearly marked ‘‘Amended 

Report’’ within 30 days of the change. 

* * * * * 

Signed in Washington, DC, this 9th day of 

July, 2018. 

Arthur F. Rosenfeld, 

Director, Office of Labor-Management 

Standards. 

[FR Doc. 2018–14948 Filed 7–17–18; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2017–0914] 

RIN 1625–AA00 

Safety Zone; Taylor Bayou Turning 

Basin, Port Arthur, TX 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

the upper reaches of Taylor Bayou 

Turning Basin in Port Arthur, TX. This 

action is necessary to provide protection 

for the levee and temporary protection 

wall located at the north end of the 

turning basin until permanent repairs 

can be effected. This regulation 

prohibits persons and vessels from 

entering the safety zone unless 

authorized by the Captain of the Port 

Marine Safety Unit Port Arthur (COTP) 

or a designated representative. 

DATES: This rule is effective without 

actual notice from July 18, 2018 through 

January 31, 2023. For the purposes of 

enforcement, actual notice will be used 

from July 11, 2018 through July 18, 

2018. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type USCG–2017– 

0914 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mr. Scott Whalen, Marine Safety 

Unit Port Arthur, U.S. Coast Guard; 

telephone 409–719–5086, email 

scott.k.whalen@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port Marine Safety 

Unit Port Arthur 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 


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