[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Rules and Regulations]
[Pages 49230-49265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15510]



[[Page 49229]]

Vol. 88

Friday,

No. 144

July 28, 2023

Part V





 Department of Labor





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Office of Labor-Management Standards





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29 CFR Part 405





Revision of the Form LM-10 Employer Report; Final Rule

  Federal Register / Vol. 88, No. 144 / Friday, July 28, 2023 / Rules 
and Regulations  

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DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 405

RIN 1245-AA13


Revision of the Form LM-10 Employer Report

AGENCY: Office of Labor-Management Standards, Department of Labor.

ACTION: Form revision.

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SUMMARY: The Office of Labor-Management Standards (OLMS) of the 
Department of Labor (Department) is revising the Form LM-10 Employer 
Report upon review of the comments received in response to its 
September 13, 2022 notice of proposed form revision. Under section 203 
of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or 
the Act), employers must file a Form LM-10 Employer Report with the 
Department to disclose certain payments, expenditures, agreements, and 
arrangements. Under the revision, the Department adds a checkbox to the 
Form LM-10 report requiring certain reporting entities to indicate 
whether such entities were Federal contractors or subcontractors in 
their prior fiscal year, and two lines for entry of filers' Unique 
Entity Identifier and Federal contracting agency or agencies, if 
applicable.

DATES: 
    Effective date: This rule is effective August 28, 2023.
    Applicability date: The changes made to the Form LM-10 reporting 
requirements will be applicable to Form LM-10 reports filed on or after 
such date.

FOR FURTHER INFORMATION CONTACT: Karen Torre, Chief of the Division of 
Interpretations and Regulations, 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), [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority
II. Statutory and Regulatory Background
    A. History of the LMRDA's Reporting Requirements
    B. Statutory and Regulatory Requirements for Employer Reporting
    C. Overview and History of the Form LM-10
III. Revision to the Form LM-10
    A. General Overview of Revision and Comments Received
    B. Overview of Item 12.a.
    C. Overview of Item 12.b.
IV. Purpose and Justification for the Revision
    A. OLMS Has the Authority To Issue This Rule
    B. The Revision Furthers the Intent of the Act
    C. The Revision Ensures That Filing Employers Fully Explain the 
Circumstances of Payments, Agreements and Arrangements
    D. Both the Public and Workers Have an Interest in Transparency 
Concerning Employers' Federal Contractor Status
    1. Persuader Activity Has Increased in Prevalence
    2. The Revision Will Lead to Increased Transparency
    E. Including the Unique Entity Identifier Will Prevent Confusion 
and Ease Access
    F. The Revision Does Not Create a Significant Burden on 
Employers
V. Additional Comments Received
    A. Comments Concerning Potential Duplication of Existing 
Reporting Requirements
    B. Comments Concerning First Amendment Protected Activities and 
Other Employee and Employer Rights
    C. Comments Outside the Scope of This Rulemaking
    D. The Revision May Provide Other Benefits to the Government
VI. Regulatory Procedures
    A. Executive Order 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Review)
    1. Costs of the Updated Form LM-10 for Affected Employers
    2. Summary of Costs
    3. Benefits
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    1. Summary and Overview of the Final Rule
    2. Methodology of the Burden Estimate
    3. Conclusion
    D. Unfunded Mandates Reform
    E. Small Business Regulatory Enforcement Act of 1996
Appendix: Revised Form LM-10 and Instructions

I. Statutory Authority

    The legal authority for this Final Rule is set forth in sections 
203 and 208 of the LMRDA, 29 U.S.C. 433, 438. Section 208 of the LMRDA 
provides that the Secretary of Labor shall have authority to issue, 
amend, and rescind rules and regulations prescribing the form and 
publication of reports required to be filed under Title II of the Act 
and such other reasonable rules and regulations as the Secretary may 
find necessary to prevent the circumvention or evasion of the reporting 
requirements. 29 U.S.C. 438. The Secretary has delegated this authority 
under the LMRDA to the Director of OLMS and permits re-delegation of 
such authority. See Secretary's Order 03-2012--Delegation of 
Authorities and Assignment of Responsibilities to the Director, Office 
of Labor-Management Standards, 77 FR 69375 (November 16, 2012). The 
Director moved to exercise this authority through a proposed form 
revision. 87 FR 55952 (September 13, 2022).

II. Statutory and Regulatory Background

A. History of the LMRDA's Reporting Requirements

    The Secretary of Labor administers and enforces the LMRDA, as 
amended, Public Law 86-257, 73 Stat. 519-546, codified at 29 U.S.C. 
401-531. The LMRDA, in part, establishes labor-management transparency 
through reporting and disclosure requirements for labor organizations 
and their officials, employers and their labor relations consultants, 
and surety companies. See 29 U.S.C. 431-441.
    In enacting the LMRDA in 1959, a bipartisan Congress expressed the 
conclusion that in the labor and management fields ``there have been a 
number of instances of breach of trust, corruption, disregard of the 
rights of individual employees, and other failures to observe high 
standards of responsibility and ethical conduct which require further 
and supplementary legislation that will afford necessary protection of 
the rights and interests of employees and the public generally as they 
relate to the activities of . . . employers, labor relations 
consultants, and their officers and representatives.'' 29 U.S.C. 
401(b).
    The LMRDA is the direct outgrowth of an investigation conducted by 
the Senate Select Committee on Improper Activities in the Labor or 
Management Field, commonly known as the McClellan Committee, which 
convened in 1958. Enacted in 1959 in response to the report of the 
McClellan Committee, the LMRDA addresses various ills identified by the 
Committee through a set of integrated provisions aimed, among other 
things, at shedding light on labor-management relations, governance, 
and management. See 29 U.S.C. 401. These provisions include financial 
reporting and disclosure requirements for employers and labor relations 
consultants. See 29 U.S.C. 431-441.
    Among the abuses that prompted Congress to enact the LMRDA was 
questionable conduct by some employers and their labor relations 
consultants that interfered with the right of employees to organize 
labor unions and to bargain collectively under the National Labor 
Relations Act (NLRA),

[[Page 49231]]

29 U.S.C. 151 et seq. See, e.g., S. Rep. NO. 86-187 (``S. Rep. 187'') 
at 6, 10-12 (1959), reprinted in 1 NLRB, Legislative History of the 
Labor-Management Reporting and Disclosure Act of 1959 (``LMRDA Leg. 
Hist.''), at 397, 402, 406-408. Congress was concerned that labor 
consultants, acting on behalf of management, worked directly or 
indirectly to discourage legitimate employee organizing drives and to 
engage in ``union-busting'' activities. S. Rep. 187 at 10, LMRDA Leg. 
Hist. at 406. Congress concluded that such consultant activities 
``should be exposed to public view,'' id., S. Rep. at 11, ``since most 
of them are disruptive of harmonious labor relations and fall into a 
gray area,'' even if the consultant's conduct was not unlawful or did 
not otherwise constitute an unfair labor practice under the NLRA. Id. 
at 12; see also 29 U.S.C. 401(a) (in enacting LMRDA, Congress found 
that ``the relations between employers and labor organizations and the 
millions of workers they represent have a substantial impact on the 
commerce of the Nation'').
    As a result, Congress imposed reporting requirements on employers 
and their consultants under LMRDA section 203. 29 U.S.C. 433. Under 
LMRDA section 208, the Secretary of Labor is authorized to issue, 
amend, and rescind rules and regulations prescribing the form and 
publication of required reports, as well as ``such other reasonable 
rules and regulations . . . as [the Secretary] may find necessary to 
prevent the circumvention or evasion of such reporting requirements.'' 
29 U.S.C. 438. The Secretary is also authorized to bring civil actions 
to enforce the LMRDA's reporting requirements. 29 U.S.C. 440. Willful 
violations of the reporting requirements, knowing false statements made 
in a report, and knowing failures to disclose a material fact in a 
report are subject to criminal penalties. 29 U.S.C. 439.

B. Statutory and Regulatory Requirements for Employer Reporting

    Section 203(a) of the LMRDA, 29 U.S.C. 433(a), requires employers 
to file a report, subject to certain exemptions, covering the following 
payments and arrangements made in a fiscal year: certain payments to, 
or other financial arrangements with, a labor organization or its 
officers, agents, or employees; payments to employees for the purpose 
of causing them to persuade other employees with respect to their 
bargaining and representation rights; payments for the purpose of 
interfering with employees in the exercise of their bargaining and 
representation rights or for obtaining information on employee or labor 
organization activities in connection with labor disputes involving 
their employer; and arrangements (including related payments) with a 
labor relations consultant for the purpose of persuading employees with 
respect to their bargaining and representation rights, or for obtaining 
information concerning employee activities in connection with a labor 
dispute involving their employer. 29 U.S.C. 433.
    The employer must file with the Secretary a report, in a form 
prescribed by the Secretary, signed by the employer's president and 
treasurer or corresponding principal officers showing in detail the 
date and amount of each such payment, loan, promise, agreement, or 
arrangement and the name, address, and position, if any, in any firm or 
labor organization of the person to whom it was made 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. 29 U.S.C. 433(a). The implementing regulations of the Department 
require employers to file a Form LM-10 Employer Report (``Form LM-10'') 
that contains this information. See 29 CFR part 405.

C. Overview and History of the Form LM-10

    The Form LM-10 must be filed by any employer who has engaged in 
certain financial transactions or arrangements, of the type described 
in LMRDA section 203(a), with any labor organization, union official, 
employee, or labor relations consultant, or who has made expenditures 
for certain objects relating to activities of employees or a union. 29 
U.S.C. 433(a). Employers are required to file only one Form LM-10 each 
fiscal year that covers all instances of reportable activity even if 
activity occurs at multiple locations.
    In its current iteration, the Form LM-10 is divided into two parts: 
Part A and Part B. Part A consists of pages 1 and 2 of the Form LM-10. 
In Part A, Items 1-7 request basic identifying information about the 
employer: namely file number, fiscal year, address of the employer, 
address of the president or corresponding officer, any other address 
where records needed to verify the report can be made available for 
examination, a checklist of each location where records needed to 
verify the report can be made available for examination, and what type 
of legal entity is filing the report (``Corporation, Partnership, 
Individual, Other (specify)''). Items 13 and 14 are also featured on 
page 1 of Part A and are the signature boxes for the president and 
treasurer of the employer, respectively. Page 2 consists entirely of 
Part A, Item 8, which contains six ``Yes or No'' questions pertaining 
to reportable employer activities. If the employer can answer ``No'' to 
every question in Item 8, then no Form LM-10 needs to be filed. With 
each question answered ``Yes,'' the filer must complete a separate Part 
B for every person or organization with whom a reportable agreement was 
made or to whom a reportable payment was made as to that ``Yes'' 
answer. The form also asks for the total number of Part Bs filed for 
each question in Item 8.
    Part B comprises page 3, and requires the name of the reporting 
employer and the file number again to ensure it is matched with Part A. 
Similarly, the next field is a checkbox indicating the questions in 
Item 8 (labeled a through f) to which this Part B applies. Items 9-12 
require various details regarding the agreement or payments the 
employer-filer made.
    Item 9 consists of four parts, 9.a.-9.d. Item 9.a. asks whether 
this Part B concerns itself with an ``Agreement,'' a ``Payment,'' or 
``Both.'' Item 9.b. requires the name and address of the person with 
whom or through whom a separate agreement was made or to whom payments 
were made. Item 9.c. requires the position of any persons mentioned in 
9.b. Item 9.d. requires the name and address of the labor organization 
or firm any person mentioned in 9.b. is a part of.
    Item 10 consists of two parts, 10.a. and 10.b. Item 10.a. requires 
the date of the promise, agreement, or arrangement pursuant to which 
payments or expenditures were agreed to or made. Item 10.b. consists of 
three checkboxes and filers are required to mark whether the promise, 
agreement, or arrangement was ``Oral,'' ``Written,'' or ``Both.'' If 
the agreement is written and entered into during the fiscal year, it 
must be attached to the report.
    Item 11 consists of three parts, 11.a.-11.c. Item 11.a. requires 
the date of each payment or expenditure referred to in Item 9. Item 
11.b. requires the amount of each of those payments. Item 11.c. 
requires the filer to indicate the kind of each payment or expenditure, 
specifying whether it was a payment or a loan and whether it was made 
in cash or property.
    Historically, Item 12 required a narrative response from the filers 
with a full explanation identifying the purpose and circumstances of 
the payments, promises, agreements, or arrangements included in the 
report.

[[Page 49232]]

The explanation needed to include a detailed account of services 
rendered or promised in exchange for promises or payments the filer has 
either already made or agreed to make. The explanation needed also to 
fully outline the conditions and terms of any oral agreement or 
understanding pursuant to which they were made. Finally, the filer was 
required to indicate whether the payments or promises reported 
specifically benefited the person or persons listed in Item 9.b., or 
the firm, group, or labor organization named in Item 9.d. If the 
employer-filer made payments, promises, or agreements through a person 
or persons not shown above, it needed to provide the full name and 
address of such person or persons. The explanation needed to clearly 
indicate why the filer must report the payment, promise, or agreement. 
Any incomplete responses or unclear explanations rendered a report 
deficient. These requirements continue, substantively unchanged by this 
final rule, in new Item 12.a.

III. Revision to the Form LM-10

A. General Overview of Revision and Comments Received

    As proposed in its September 13, 2022, proposed form revision, the 
Department revises the Form LM-10 to supplement the identifying 
information that OLMS already collects from employers required to file, 
such as the employer's name, address, and status as a corporation, 
partnership, or individual. See 87 FR 55952 (September 13, 2022). The 
revised Item 12 does not change which employers are required to file 
Form LM-10; it requires employers who are already required to file the 
Form to provide an additional item of identifying information--whether 
the employer is a federal contractor or subcontractor--and, if so, a 
short entry indicating the federal contracting agency and the 
contractor's Unique Entity Identifier (UEI), if the contractor has one. 
If providing the name of a federal contracting agency would reveal 
classified information, the filer should omit the name of the agency. 
All federal prime contractors, and, in some cases, subcontractors 
performing on federal prime contracts, must have a UEI to do business 
with the federal government or to meet reporting requirements pursuant 
to the Federal Acquisition Regulation (FAR). For example, FAR part 
52.204-6 requires prime contractors to obtain a UEI to register to 
obtain contracts with the federal government.\1\
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    \1\ ``As of April 4, 2022, the federal government stopped using 
the DUNS Number to uniquely identify entities. Now, entities doing 
business with the federal government use the Unique Entity ID 
created in SAM.gov. They no longer go to a third-party website to 
obtain their identifier. This transition allows the government to 
streamline the entity identification and validation process, making 
it easier and less burdensome for entities to do business with the 
federal government.'' Unique Entity Identifier Update, U.S. General 
Services Administration, available at https://www.gsa.gov/about-us/organization/federal-acquisition-service/office-of-systems-management/integrated-award-environment-iae/iae-systems-information-kit/unique-entity-identifier-update (last visited December 10, 
2022).
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    The Department has revised Item 12 to contain two parts: Item 12.a, 
which will now require the information previously required in Item 12, 
and a new Item 12.b. To collect the new information quickly and 
efficiently, the Department is adding one ``Yes,'' ``No,'' or ``N/A'' 
checkbox at the end of the form, in Item 12.b, regarding federal 
contractor status. In addition, this revision adds two lines where 
filers who are federal contractors or subcontractors will enter their 
UEI and the federal contracting agency involved.
    Not all filers will be required to complete Item 12.b. Filers who 
answer ``Yes'' to Item 8.a., but ``No'' to Items 8.b.-8.f., will not be 
required to complete Item 12.b., and the electronic form will 
automatically check the ``N/A'' box and grey out (render nonfunctional) 
the remaining portions of Item 12.b. for those filers so that no entry 
can be made.\2\
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    \2\ Item 8 requires filers to indicate the type of reportable 
activity engaged in by the employer. Item 8 a. asks filers: Did you 
make or promise or agree to make, directly or indirectly, any 
payment or loan of money or other thing of value (including 
reimbursed expenses) to any labor organization officer, agent, shop 
steward, or other representative or employee of any labor 
organization? Items 8 b. through 8 f. ask about payments and 
expenditures related to a labor dispute or the right to organize and 
bargain collectively. See also https://www.dol.gov/agencies/olms/reports/electronic-filing.
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    The instructions also make explicit that filers must enter 
information in Item 12.a. that the Form LM-10 already encompassed 
before this revision--including the subject group of employees (e.g., 
the particular unit or division in which those employees work). See 
unrevised Item 12 (``Provide a full explanation identifying the purpose 
and circumstances of the payments, promises, agreements, or 
arrangements included in the report. Your explanation must contain a 
detailed account of services rendered or promised in exchange for 
promises or payments you have already made or agreed to make. Your 
explanation must fully outline the conditions and terms of all listed 
agreements.''). This necessarily includes identifying certain payments, 
expenditures, agreements, and arrangements regarding employees. Filers 
previously would have identified the subject group of employees in Item 
12.
    On September 13, 2022, the Department published a proposed revision 
to the Form LM-10, which provided a 30-day comment period ending on 
October 13, 2022. The Department received 35 comments on the LM-10 
revisions. Comments were received from labor organizations, nonprofit 
organizations, private individuals, and members of Congress. Of the 35 
total comments, 32 expressed overall support for the proposed revisions 
while three opposed them. As discussed below, the Department adopts the 
revisions as proposed.

B. Overview of Item 12.a.

    The new Item 12.a. consists of a narrative section that mirrors the 
prior Item 12, and the revised instructions add a clarification. In 
both the prior Item 12 and the new Item 12.a., filers must explain 
fully the circumstances of all payments, including the terms of any 
oral agreement or understanding pursuant to which they were made. As 
the instructions indicated for Item 12 and now indicate for Item 12.a., 
filers must provide ``a full explanation identifying the purpose and 
circumstances of the payments, promises, agreements, or arrangements 
included in the report.'' The instructions are revised to make explicit 
that a ``full explanation'' continues to require filers to identify the 
subject group of employees (e.g., the particular unit or division in 
which those employees work). This was accomplished by adding a new 
final clause to an existing sentence. The sentence, ``Your explanation 
must fully outline the conditions and terms of all listed agreements,'' 
was revised. It now reads, ``Your explanation must fully outline the 
conditions and terms of all listed agreements, including fully 
identifying the subject group of employees (e.g., the particular unit 
or division in which those employees work).'' \3\ This revision will 
help ensure that filers understand that a full description requires 
information on the subject group of employees.
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    \3\ The preamble of the proposed revision provided, ``The 
instructions would also make explicit that a `full explanation' 
requires that filers must identify the subject group of employees 
(e.g., the particular unit or division in which those employees 
work).'' 87 FR 55954. Through an editing error, the instructions 
used the Latin abbreviation ``i.e.'' 87 FR 55969. The Department 
adopts the abbreviation used in the preamble.
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C. Overview of Item 12.b.

    Filers who check ``Yes'' for any item in Items 8.b. through 8.f. 
must complete

[[Page 49233]]

Item 12.b. indicating their status as a federal contractor or 
subcontractor. Regarding such status, the Department, as proposed, 
adopts the following definitions from the regulations implementing 
Executive Order (E.O.) 13496, Notification of Employee Rights Under 
Federal Labor Laws: (a) ``contract,'' (b) ``contracting agency,'' (c) 
``contractor,'' (d) ``government contract,'' (e) ``modification of a 
contract,'' (f) ``prime contractor,'' (g) ``subcontract,'' and (h) 
``subcontractor.'' 29 CFR 471.1. Therefore, filers must answer Item 
12.b. in accordance with those eight definitions.\4\ Id.
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    \4\ The Form LM-10 instructions list the definitions adopted 
from the implementing regulations of E.O. 13496 (Notification of 
Employee Rights Under Federal Labor Laws) at 29 CFR 471.1 for 
Contract, Contracting agency, Contractor, Government contract, 
Modification of a contract, Prime Contractor, Subcontract, and 
Subcontractor. See 29 CFR 471.1.
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    Item 12.b. consists of two parts. First, filers must complete the 
``Yes,'' ``No,'' or ``N/A'' checkbox in response to the following 
question: ``If your Part B applies to Items 8.b.-8.f., did the 
expenditures, payments, arrangements or agreements concern employees 
performing work pursuant to a federal contract or subcontract?'' 
Second, if the filer answers ``Yes,'' it must enter, on the two lines 
provided, their UEI and the name of the federal contracting agency 
involved. If a filer does not have a UEI, then the filer (most likely a 
subcontractor) should so state in Item 12.b. If providing the name of a 
federal contracting agency would reveal classified information, the 
filer should omit the name of the agency. When filers answer ``Yes,'' 
in the checkbox portion of Item 12.b., failure to complete the entry on 
the two lines provided, or providing an unclear explanation in that 
entry, will render the report deficient.

IV. Purpose and Justification for the Revisions

A. OLMS Has Authority To Issue This Rule

    As the Department stated in its proposed revision, both the public 
and the employees whose rights are at issue have an interest in 
understanding the full scope of activities undertaken by employers to 
persuade employees regarding the exercise of their rights to organize 
or bargain collectively, to surveil employees, or to commit unfair 
labor practices. See S. Rep. 187 at 10-11, LMRDA Leg. Hist. at 406-07. 
This interest is heightened when the employees' own tax dollars may be 
indirectly funding an employer's reportable activities. The public and 
employees also have an interest in knowing whether the federal 
government is paying for goods and services from an employer who would 
seek to engage in activity that may disrupt the harmonious labor 
relations that the federal government is bound to protect. See S. Rep. 
187 at 12; see also 29 U.S.C. 401(a). OLMS has authority to protect 
this interest.
    The Form LM-10 reporting requirement is based on Congress's 
concerns over the ``large sums of money [that] are spent in organized 
campaigns on behalf of some employers'' on persuader activities that 
``may or may not be technically permissible'' and Congress's 
determination that the appropriate response to such persuader campaigns 
is to disclose them in the public interest and for the preservation of 
``the rights of employees.'' See S. Rep. 187 at 10-12, LMRDA Leg. Hist. 
at 406-07.
    As set forth in Section I, Statutory Authority, above, LMRDA 
Section 208 authorizes the Secretary to ``issue . . . regulations 
prescribing the form and publication of reports required to be 
filed[.]'' 29 U.S.C. 438. The statutory provision authorizing the 
issuance of the Form LM-10 describes the data and information to be 
reported in the Secretary's form. Employers shall file with the 
Secretary a report, in a form prescribed by the Secretary, signed by 
the employer's president and treasurer or corresponding principal 
officers showing in detail the date and amount of each such payment, 
loan, promise, agreement, or arrangement and the name, address, and 
position, if any, in any firm or labor organization of the person to 
whom it was made 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. 29 U.S.C. 433(a). The statutory 
intent to require employers to provide a ``full explanation'' of 
payments was reflected in the Form LM-10 the Secretary established. 
Employers are told to provide a ``full explanation'' of the 
circumstances of all such payments, including the terms of any 
agreement or understanding pursuant to which they were made. 29 U.S.C. 
433(a).
    This revision, as with the proposal, explains that one of the 
``circumstances'' that must be explained is whether the payments 
concerned employees performing work pursuant to a federal contract or 
subcontract. If so, the filer must provide its UEI, if it has one, and 
name the relevant federal contracting agency. Disclosing contractor 
status is consistent with Congress's intent in enacting the LMRDA: 
``[I]t continues to be the responsibility of the Federal Government to 
protect employees' rights to organize, choose their own 
representatives, bargain collectively, and otherwise engage in 
concerted activities for their mutual aid or protection.'' 29 U.S.C. 
401(a); see also E.O. 13494 (reiterating ``the policy of the United 
States to remain impartial concerning any labor-management dispute 
involving Government contractors.''). As discussed in more detail, 
below, employees will more fully understand the circumstances under 
which they seek to exercise their rights when they know the contractor 
status and UEI of their employer, as well as the division or unit of 
the employees whose rights to organize, choose their own 
representatives, bargain collectively, and otherwise engage in 
concerted activities the employer seeks to influence.
    Half of all supportive commenters specifically referenced the 
Department's authority to make this revision, and two-thirds of 
supportive comments expressly indicated that making this revision is 
consistent with the LMRDA purpose of providing transparency through 
reporting and disclosure.
    As one commenter stated, ``OLMS is well within its authority to 
prescribe these modest changes to the Form LM-10 [and] . . . [b]ecause 
the NPRM fully explains this sound basis for the revisions, we do not 
address them further.'' Another commenter similarly outlined the clear 
statutory basis for making the change: ``This statute [LMRDA] requires 
the disclosure of persuader activity payments to include `full 
explanation of the circumstances' surrounding those payments . . . 
[and] delegates authority to the Agency to `prescribe[]' the `form' in 
which these reports are made, further reinforcing the authority of OLMS 
to implement this propose change.''
    Other supportive commenters agreed that the revision was consistent 
with, and a reasonable alteration pursuant to, the reporting 
requirements of section 203 of the LMRDA and within the Department's 
authority under section 208 to ``issue . . . regulations prescribing 
the form and publication of reports required to be filed[.]'' 29 U.S.C. 
438. As a union commenter described, the LM-10 already directs filers 
``to `[e]xplain fully the circumstances of all payments, including the 
terms of any oral agreement or understanding pursuant to which they 
were made.'' Accordingly, the commenter continued, ``it is reasonable 
and appropriate for [filers] to disclose their status as a federal 
contractor or subcontractor, and information about the employees (or

[[Page 49234]]

groups thereof) that are the subject of the payments, expenditures, 
agreements, or arrangements covered by the statute, as a part of their 
obligation to provide a full explanation of this conduct.''
    Commenters also turned to legislative history for further support 
of the Department's authority to issue this revision. A union commenter 
citing the LMRDA Legislative History, highlighted Congress' concern 
with ``middlemen'' and the applicable statutory language as 
``provid[ing] clear authority for the modest action proposed in the 
NPRM.'' A different union commenter also looked to the legislative 
history of the LMRDA, citing a Senate Report that concluded most 
persuader activity is `` `disruptive of harmonious labor relations and 
fall[s] into a gray area' such that it `should be exposed to public 
view.' '' The Department enacts this revision to more fully realize the 
ideal of transparency that is central to section 203 of the LMRDA. As 
many union commenters noted, the broad authority granted to the 
Secretary by section 208 allows for these modest changes to the form. 
Another union commenter agreed that the Department's ``clear interest 
in understanding the full scope of activities undertaken by employers 
that enter into agreements to persuade employees not to exercise these 
rights'' is indeed served by these revisions.

B. The Revision Furthers the Intent of the Act

    One intent of the Act is to support a harmonious relationship among 
employees, labor organizations, employers, and labor relations 
consultants. See 29 U.S.C. 401 (congressional declaration of findings, 
purposes, and policy for LMRDA); id. at 401(a) (in enacting the LMRDA, 
Congress found that ``the relations between employers and labor 
organizations and the millions of workers they represent have a 
substantial impact on the commerce of the Nation''). The Act therefore 
requires transparency and accountability not just for labor 
organizations, but employers and labor relations consultants as well. 
Congress intended the LMRDA to provide for the elimination and 
prevention of improper practices on the part of ``labor organizations, 
employers, labor relations consultants and their officers and 
representatives.'' 29 U.S.C. 401(c) (emphasis added).
    Members of Congress commented that the ``proposed rule does not 
subject any employer to new filing requirements.'' The Department 
agrees that the revision does not change the criteria that determines 
which employers are required to file the Form LM-10. The revision also 
does not impair any rights that filers had prior to the change to Item 
12, including First Amendment rights, as addressed below in Part V.B. 
It does not increase required filers' liability in connection with 
activities that they already had to report and does not impose duties 
to file reports that filers did not already have under the LMRDA. It 
adds, for certain filers only, the straightforward step of providing 
basic identifying details regarding contractor status that filers will 
be able to quickly enter on the Form LM-10. Consistent with the 
statutory scheme enacted by Congress, the revision outlines aspects of 
the ``full explanation'' that filers must report on the Form LM-10. 29 
U.S.C. 433(a).
    Next, one commenter opposed the proposed Form LM-10 revision 
because it claimed that the proposed revision is contrary to the intent 
of the LMRDA. The commenter asserted that while the LMRDA does place 
some requirements on management, the main intent of the law is to 
``ensure that individual workers are apprised of the financial actions 
of their own unions[.]'' (Emphasis in original.) This assertion is 
contradicted by both the legislative history and the plain language of 
the statute. The Act expressly requires employer reports, 29 U.S.C. 433 
(``Report of employers''), and authorizes the Department ``to issue, 
amend, and rescind rules and regulations prescribing the form and 
publication'' of the employer reports required to be filed under the 
statute. 29 U.S.C. 438. The commenter explained, however, that in its 
view, ``[w]orkers have a direct and obvious interest in being aware of 
the actions of their unions, which purport to speak on their behalf as 
their collective voice. The workers' interest is less compelling when 
it involves the financial disclosure by employers as that is, by 
definition, not the workers' own money and they do not have control 
over its use under ordinary circumstances.'' The Department disagrees 
that this is a reason to reject the revision. Congress, aware that 
employers were spending their own money on what are now reportable 
activities, enacted the LMRDA to expose those payments, agreements, and 
arrangements to public view. See S. Rep. No. 86-187 (``S. Rep. 187'') 
at 10-11 (1959), reprinted in 1 NLRB, LMRDA Leg. Hist., at 406-07.
    Legislative history shows that the revisions are in accord with the 
congressional intent of the Act. When debating and enacting the LMRDA, 
Congress considered conduct by some employers and their labor relations 
consultants as interfering with the right of employees to organize 
labor unions and to bargain collectively under the NLRA. See S. No. 86-
187. Rep, at 50-51, reprinted in 1 LMRDA Leg. Hist., at 446-447. 
Congress believed that employer payments and activities aimed at 
employee unionization efforts should be made public even if they are 
lawful.\5\ See S. No. 86-187. Rep, at 81-82, reprinted in 1 LMRDA Leg. 
Hist., at 477-478. Among the concerns that prompted Congress to enact 
the LMRDA was employers retaining labor relations consultants whose 
actions discouraged or impeded the right of employees to organize labor 
unions and to bargain collectively under the NLRA, 29 U.S.C. 151 et. 
seq. See, e.g., S. No. 86-187. Rep, at 6, 10-12, reprinted in 1 LMRDA 
Leg. Hist., at 397, 402, 406-408. Therefore, the Department finds that 
employer reporting on persuader, surveillance, and unfair labor 
practice activity is a fundamental part of the Act.
---------------------------------------------------------------------------

    \5\ Congress recognized that some of the persuader activities 
occupied a ``gray area'' between proper and improper conduct and 
chose to rely on disclosure rather than proscription, to ensure 
harmony and stability in labor-management relations. See S. Rep. No. 
86-187, at 5, 12; 1 LMRDA Leg. Hist., at 401, 408.
---------------------------------------------------------------------------

    Moreover, Congress authorized the Department to collect detailed 
reports from employers. 29 U.S.C. 433, 438. The Senate Report explained 
that the Department's collection and public disclosure of employer 
reports under section 203 ``will accomplish the same purpose as public 
disclosure of conflicts of interest and other union transactions which 
are required to be reported'' under other sections of the bill that was 
to become the LMRDA. S. Rep. No. 86-187, at 5, 12, reprinted in 1 LMRDA 
Leg. Hist., at 401, 408.\6\ The Senate Report also explained that 
employers required to file must ``file a detailed report.'' Consistent 
with this congressional intent, Form LM-10 reports have required a 
variety of details from employers including whether they are 
partnerships, corporations, or individuals. See Form LM-10, Item 7. 
Similarly, the revision now adds an additional piece of identifying

[[Page 49235]]

information in Item 12.b. for certain filers--whether they are federal 
contractors or subcontractors and, if so, their UEI and agency 
involved.
---------------------------------------------------------------------------

    \6\ H.R. Rep. No. 86-741(1959), at 12-13, 35-37, reprinted in 1 
LMRDA Leg. Hist., at 770-771, 793-795, contained similar statements 
However, it should be noted that the House bill contained a much 
narrower reporting requirement--reports would be required only if 
the persuader activity interfered with, restrained, or coerced 
employees in the exercise of their rights, i.e., if the activity 
would constitute an unfair labor practice. The House bill also 
contained a broad provision that would have essentially exempted 
attorneys, serving as consultants, from any reporting. In 
conference, the Senate version prevailed in both instances, 
restoring the full disclosure provided in the Senate bill. See H. 
Rep. No. 86-1147 (Conference Report), at 32-33; 1 LMRDA Legis. 
Hist., at 936-937.
---------------------------------------------------------------------------

C. The Revision Ensures That Filing Employers Fully Explain the 
Circumstances of Payments, Agreements, and Arrangements

    This revision ensures that filers fully explain the circumstances 
of all covered payments, as required by the statute. The statute states 
in broad terms that the details of the reportable activity are to be 
collected in a ``form prescribed by [the Secretary] . . . showing . . . 
a full explanation of the circumstances of all such payments, including 
the terms of any agreement or understanding pursuant to which they were 
made.'' 29 U.S.C. 433(a). For example, the group of employees affected 
by a covered agreement (scope of agreement) and the worksite of the 
employees to be targeted (location of performance on the agreement) are 
basic details readily captured by the statute's use of the phrase 
``terms of any agreement.'' 29 U.S.C. 433. The status of an employer as 
a federal contractor is captured within ``full explanation'' of those 
terms. In many cases, it may also be captured in the terms of the 
agreement itself, and reportable for that reason alone.
    One commenter who opposed the revision noted that Congress did not 
include federal contractor status as an explicit requirement in the 
drafting of the LMRDA, indicating that Congress did not find such 
status relevant. The Department does not agree as Congress, instead of 
making explicit all aspects of the reporting requirements, authorized 
the Secretary to, ``issue . . . rules and regulations prescribing the 
form and publication of reports required to be filed'' including 
concerning the details of a ``full explanation of the circumstances of 
all such payments[.]'' 29 U.S.C. 433, 438. Congress declined to 
enumerate each ``circumstance[]'' to be reported, delegating authority 
to the Secretary to determine the relevant details when prescribing the 
form and publication of the Form LM-10.
    Members of Congress commented that the revision ``would only inform 
employees of whether their employer is a federal contractor, a fact 
typically already known by employees since they work on the 
contracts.'' Another commenter also thought it would be ``self-
evident'' if employees' work for a company involved the federal 
government. In contrast, an international union representing employees 
throughout the economy, including manufacturing employees, commented 
that the form may provide the first notice to employees that they are 
employees of a federal contractor: ``In many instances, manufacturing 
employees may be unaware that their employer is a federal contractor or 
subcontractor.'' The commenter described analogous circumstances for 
service sector employees. Similarly, a national union commented that it 
only discovered during the pandemic that some of the employers it 
bargains with consider themselves to be federal contractors because 
those employers sought aid available to such contractors. In support of 
the revision, another commenter said that adding Item 12.b. will add a 
level of accountability. The Department agrees that some employees may 
not be aware that their work is pursuant to a federal contract and that 
the revision adds a level of accountability envisioned by the LMRDA. It 
adds identifying details regarding filers' contractor status that are 
part of the ``full explanation'' Congress intended to be publicized 
under the Act.

D. Both the Public and Workers Have an Interest in Transparency 
Concerning Employers' Federal Contractor Status

    As stated in the notice of proposed revision, the Department makes 
these revisions in response to the increased prevalence of, and public 
interest in, persuader activities in recent years.
1. Persuader Activity Has Increased in Prevalence
    The media, academics, and non-governmental organizations (NGOs) 
have noted persuader activity in a number of industries, including 
multiple high-profile instances of companies investing substantial 
resources in persuader activity. Over the decades, employer efforts to 
defeat unions have become more prevalent, with more employers turning 
to union avoidance consultants.\7\ Further, members of Congress have 
noted recently that federal contractors have engaged in such agreements 
and activities.\8\ As the Agency responsible for promoting transparency 
around management attempts to influence employees' organizing and 
collective bargaining rights, OLMS closely monitors developments in the 
ways management interacts with union organizing efforts. As union 
avoidance activity increases, it is well within OLMS's role to increase 
the quality and utility of the information being disclosed on such 
activity.
---------------------------------------------------------------------------

    \7\ Celine McNicholas, et. al, Unlawful: U.S. Employers Charged 
with Violating Federal Labor Law in 41.5 percent of all Union 
Elections, Economic Policy Institute, (Dec. 11, 2019) available at 
https://www.epi.org/publication/unlawful-employer-opposition-to-union-election-campaigns/ (``The data show that U.S. employers are 
willing to use a wide range of legal and illegal tactics to 
frustrate the rights of workers to form unions and collectively 
bargain . . . . [E]mployers spend roughly $340 million annually on 
`union avoidance' consultants to help stave off union elections . . 
. . Over the past few decades, employers' attempts to thwart 
organizing have become more prevalent, with more employers turning 
to the scorched-earth tactics of `union avoidance' consultants.''); 
Heidi Shierholz et. al, Latest Data Release on Unionization, 
Economic Policy Institute, (Jan. 20, 2022) available at https://www.epi.org/publication/latest-data-release-on-unionization-is-a-wake-up-call-to-lawmakers/ (describing how ``it is now standard, 
when workers seek to organize, for employers to hire union avoidance 
consultants''); John Logan, The New Union Avoidance 
Internationalism, 13 Work Org., Lab. & Globalisation 2 (2019) 
available at https://www.scienceopen.com/hosted-document?doi=10.13169/workorgalaboglob.13.2.0057; Thomas A. Kochan 
et. al, U.S. Workers' Organizing Efforts and Collective Actions: A 
Review Of The Current Landscape, Worker Empowerment Research 
Network, (June 2022) available at https://mitsloan.mit.edu/sites/default/files/2022-06/Report%20on%20Worker%20Organizing%20Landscape%20in%20US%20by%20Kochan%20Fine%20Bronfenbrenner%20Naidu%20et%20al%20June%202022.pdf; In 
Solidarity: Removing Barriers to Organizing, Hearing Before the 
United States House Committee on Education and Labor, 117th Congress 
(September 14, 2022), available at https://edlabor.house.gov/hearings/in-solidarity-removing-barriers-to-organizing.
    \8\ Should Taxpayer Dollars Go to Companies that Violate Labor 
Laws?, Comm. on the Budget, 117th Congress (May 5, 2022), available 
at https://www.budget.senate.gov/hearings/should-taxpayerdollars-go-to-companies-that-violate-labor-laws (discussing the propriety of 
government contracting with Federal contractors that engage in legal 
and illegal tactics, including ``union busters,'' to dissuade 
workers from exercising their organizing and collective bargaining 
rights).
---------------------------------------------------------------------------

    The noted prevalence of persuader activity accordingly increases 
the interest of the federal government in obtaining information about 
employers' spending on reportable activities. Congress found that most 
of this kind of persuader activity is ``disruptive of harmonious labor 
relations,'' even if lawful. S. Rep. 187 at 12, LMRDA Leg. Hist. at 
406. The federal government has an increased interest in fully 
identifying employers who may be disrupting the harmonious labor 
relations that the federal government is bound to protect when those 
employers are receiving tax dollars through federal contracts. See 29 
U.S.C. 401(a). In other words, greater transparency is even more 
important when persuader activities are increasingly undertaken by 
employers that receive federal funds through contracting relationships. 
See E.O. 13494 (reiterating ``the policy of the United States to remain 
impartial concerning any labor-management dispute involving Government 
contractors.'').

[[Page 49236]]

    One commenter disagreed with this rationale and opposed the 
proposed Form LM-10 revisions because they believe the Department 
failed to provide any evidence of persuader activities negatively 
affecting labor relations or leading to increased costs or delays for 
the contracts. Evidence of the efficiency of federal contracts is not 
necessary, as this is not part of the justification for this revision. 
Independent evidence of persuader activities negatively affecting labor 
relations is also not necessary as Congress determined that workers and 
the public needed disclosure of persuader activities, even if lawful. 
Nevertheless, an international union that represents employees in an 
array of industries, including employees of federal contractors, 
commented that, based on its long experience with anti-union campaigns 
waged by labor consultants, persuader activity is harmful to workers' 
ability to exercise their collective bargaining rights. Consistent with 
this comment, and as discussed above, in enacting the LMRDA Congress 
was concerned with the impact of persuader activities on harmonious 
labor relations and believed that increased transparency about employer 
efforts to persuade employees regarding their organizing and collective 
bargaining rights would benefit workers and the public. The revision 
furthers this statutory purpose.
2. The Revisions Will Lead To Increased Transparency
    Many commenters favored the revision because it supports increased 
transparency regarding persuader, surveillance, and unfair labor 
practice activity. One commenter observed that the revision will 
provide ``notice to workers and the public when a corporation reporting 
anti-union spending is also a government contractor.'' The commenter 
believed that this will ``help organizing workers better understand the 
full extent of corporate opposition.'' The Department agrees that the 
revision to Form LM-10 will increase transparency regarding which 
federal contractors and subcontractors are engaging in activities 
reported on the LM-10. Confirming a filer's status as a federal 
contractor, as well as its UEI and federal agency involved, as part of 
a full explanation of persuader activities will provide a method for 
the public and employees to quickly identify whether a filer is a 
federal contractor.
    Like the federal government itself, workers and the public also 
have a strong interest in spending choices by federal contractors. As a 
policy institute commenter researched, and many commenters cited, 
employers spend at least $340 million a year to bring union avoidance 
consultants to influence workers as they decide whether to support an 
organizing effort. The policy institute commenter argued that the 
revision would allow workers and the public more transparency into the 
willingness of federal contractors to engage in such practices. The 
Department agrees that this may be relevant information to employees as 
they choose how to exercise their organizing and collective bargaining 
rights. It is therefore part of the ``full explanation'' that Congress 
envisioned employers reporting. 29 U.S.C. 433(a).
    One commenter opposing the revision said that ``if the company does 
work on a federal contract, it is unlikely that this will be a central 
or even relevant issue when the workers and the management negotiate 
their own contract.'' The commenter asserted that ``workers still work 
for the company and it is its policies and contract terms that will be 
at issue.'' In the commenter's view, it is ``extremely unlikely that 
workers would oppose the company accepting federal contracts, for 
example.'' The Department is not revising the LM-10 because it expects 
employees to make a particular choice regarding how they wish to 
exercise their organizing and collective bargaining rights. Instead, 
the revision outlines further information that employees may choose to 
consider when determining whether and how to exercise their rights.
    Two commenters supported the revision because it would empower 
employees to speak out against both unlawful and lawful efforts by 
their employer to convince them to remain unrepresented. Publicizing 
which Form LM-10 filers are federal contractors will give workers more 
information as they choose whether or not to speak out against such 
efforts by their employer to convince them to remain unrepresented. And 
as an advocacy center commenter also maintained, ``the public is 
entitled to know whether public funds may indirectly lead to any sort 
of disruption of labor relations and workers' rights.''
    By learning of the federal contractor status of their employer, 
those employees would have convenient access to the information that 
would allow them to meaningfully exercise their organizing and 
collective bargaining rights such as their First Amendment right to 
choose whether to contact their representatives in Congress to inquire 
about the federal appropriations underlying the contracts with their 
employers, or the employers' activities undertaken pursuant to such 
contracts, or allow the employees to work more effectively with 
advocacy groups or the media to disseminate their views as employees to 
a wider audience. See 29 U.S.C. 157; 45 U.S.C. 152, Fourth. This is 
consistent with Congress' expectations when enacting the LMRDA--that in 
the public interest citizens would have the benefit of public reports 
regarding employer conduct that falls in a ``gray area.'' S. Rep. 187 
at 11, LMRDA Leg. Hist. at 407 (persuader activities ``should be 
exposed to public view, for if the public has an interest in preserving 
the rights of employees then it has a concomitant obligation to insure 
the free exercise'' of those rights).
    Another comment discussed the Department's authority to ensure 
LMRDA compliance and ``strongly support[ed] the proposed change to the 
LM-10's instructions to make explicit that Filers must identify the 
specific group of employees--such as the work unit or division--that 
were subjected to the reportable, employer-sponsored anti-union 
activities.'' The Department received no negative comments on its 
proposed clarification that filers must identify the subject group of 
employees and will retain the revised instructions as proposed. The 
Department finds that doing so will increase compliance.
    Multiple commenters also cited better NLRB cross-matching as a 
benefit of the revision. The Department finds that by clarifying that 
filers must identify the unit of employees subjected to their persuader 
activity, representation and unfair labor practice cases before the 
NLRB that have similar information documented can be matched more 
easily by employees, allowing them to know whether they were subjected 
to persuader activities more readily. This in turn would allow them to 
make better-informed decisions regarding their workplace 
representation.
    Several commenters spoke to how the revision is justified as a 
matter of policy by the public need for greater transparency in these 
times of increased public interest in joining a union. As one commenter 
indicated, ``[i]n 2022, workers voted to unionize in more elections 
than they have in nearly two decades. Support for labor unions is [at] 
its highest level since 1965, with 71 percent of Americans saying they 
approve of unions[.]'' The commenter went on to say ``roughly half of 
nonunion workers--or 60 million workers--would join a union if they 
could[.]''
    One commenter, an independent advocacy organization, also 
emphasized that while the LMRDA provides statutory authority for 
employer reporting form revisions that the

[[Page 49237]]

Secretary deems necessary, this rulemaking is further justified by the 
particular legal status of the group it now seeks to secure disclosure 
from: federal contractors. This commenter noted that starting with E.O. 
8802, Administrations of both parties since 1941 have held entities 
that receive federal money to ``the highest ethical standards.'' The 
commenter said that this policy was reflected in legislation including 
Title VI of the Civil Rights Act of 1964, and the Workforce Investment 
and Opportunities Act. The commenter also wrote that regulations 
require federal contractors to ``conduct themselves with the highest 
degree of integrity and honesty.'' \9\ The Department acknowledges the 
benefits of these laws but need not rely on them as the LMRDA expressly 
contains a similar policy choice for all employers that must report, 
including filers that are federal contractors. One of Congress' stated 
purposes was to hold all covered employers to ``the highest standards 
of responsibility and ethical conduct[.]'' 29 U.S.C. 401(a). The 
revision does so regarding filers that are federal contractors and is 
therefore consistent with the LMRDA.
---------------------------------------------------------------------------

    \9\ Federal Acquisition Regulations System Sec.  3.1002.
---------------------------------------------------------------------------

    The increased transparency from the revision will benefit employees 
working on federal contracts who are subject to persuader activity, 
information gathering, or interference, by giving them a ``full 
explanation'' about their employers' reportable activities--as intended 
by Congress in enacting the LMRDA. 29 U.S.C. 433(a). Generally, the 
transparency created by the reporting requirements is designed to 
provide workers with necessary information to make informed decisions 
about the exercise of their rights to organize and bargain 
collectively. For example, with the knowledge that the source of the 
information received is an anti-union campaign managed by an outsider, 
workers will be better able to assess the merits of the arguments 
directed at them and make an informed choice about how to exercise 
their rights.
    Here, employees have a particular interest in knowing whether their 
employers are federal contractors because, as taxpayers themselves, 
those employees should know whether they are indirectly financing 
persuasion campaigns regarding their own rights to organize and bargain 
collectively. An individual commenter added that ``employees of federal 
contractors and subcontractors are often given constitutional 
protections and other protections that would be awarded to government 
employees,'' and thus the federal government has a special interest in 
seeing what forces such contractors bring to bear on their employees' 
exercise of their rights. The Department agrees with this line of 
reasoning that federal contractors and subcontractors occupy a 
particular role in civil society through their relationship with the 
federal government and receipt of federal monies. See 29 U.S.C. 401(a) 
(providing it is ``the responsibility of the Federal Government to 
protect employees' rights to organize, choose their own 
representatives, bargain collectively, and otherwise engage in 
concerted activities for their mutual aid or protection''). Although 
persuader campaigns are not themselves reimbursable under the federal 
contract or subcontract,\10\ federal contractors receive substantial 
financial benefits from these federal contracts.
---------------------------------------------------------------------------

    \10\ See E.O. 13494 (federal agencies ``shall treat as 
unallowable the costs of any activities undertaken to persuade 
employees . . . to exercise or not to exercise, or concerning the 
manner of exercising, the right to organize and bargain collectively 
through representatives of the employees' own choosing'').
---------------------------------------------------------------------------

    As one commenter explained, ``these employers often receive 
`significant' sums of money under federal contracts, funds which 
`directly or indirectly' support their business activities, including 
any decision to hire union avoidance consultants or otherwise engage in 
persuader activities.'' In the same vein, a union commenter noted that 
although no federal funds could be properly expended to engage in 
reportable activity under section 203(a), federal contractors can 
nonetheless still engage in this activity using other funding, and 
while federal agencies may not be supporting that activity directly, 
the federal agencies nonetheless support businesses that engage in 
employee persuasion, helping to make them profitable. The Department 
agrees that the funds free up other funds to be spent on consultants. 
They support directly or indirectly contractors' businesses and 
additional activities, which may include the decision to hire 
consultants to persuade employees.
    The revision will increase transparency about these circumstances 
by ensuring that Form LM-10 reports include which federal contractors 
and subcontractors are engaging in persuader, surveillance, and unfair 
labor practice activities. Confirming a filer's status as a federal 
contractor, as well as its UEI and the federal agency involved, as part 
of a full explanation of reportable activities will provide a method 
for the public and employees to quickly identify whether a filer is a 
federal contractor.

E. Including the Unique Entity Identifier Will Prevent Confusion and 
Ease Access

    Multiple commenters supported the requirement to provide the Unique 
Entity Identifier (UEI) on Form LM-10. An international union commented 
that requiring certain filers to provide their UEIs on the Form LM-10 
is critical to avoid confusion. Another international labor 
organization agreed, noting that the revision would allow for ``better 
identification of filing employers through the use of the UEI[.]'' The 
Department agrees that the requirement that certain filers provide 
their UEI, if they have one, will avoid confusion and allow the public 
and employees to more easily confirm the identity of filers who are 
federal contractors. It will also ensure other, more detailed, 
information regarding federal contracts is easily obtainable to 
employees and the general public. Two or more employers may have a 
similar name, which can create difficulty for workers and the public in 
determining whether the employer is, in fact, receiving federal funds. 
Individual employers often use multiple names, including trade, 
business, assumed, or fictitious names, such as a DBA (``doing business 
as'') designation. Nevertheless, all federal prime contractors have 
their own individual identifier to seek and secure federal contracts, 
which can more explicitly link an employer to a particular federal 
contract.\11\ Requiring employers to provide this federal contract 
identifier on the Form LM-10 furthers the congressional purpose of 
detailed employer reporting under the LMRDA, 29 U.S.C. 401, 433, 
because members of the public and employees will be able to more easily 
distinguish companies with similar names or locate reports on companies 
that have changed their names. This information can also help employees 
and the general public to more expeditiously search detailed government 
contract data for these employers in the SAM.gov (System for Award 
Management system) and USASpending.gov websites. By using the UEI, 
employees and the general public can be certain that the detailed 
contract information available in the SAM System, for example, is an 
award granted to the specific employer who has filed the Form LM-10.
---------------------------------------------------------------------------

    \11\ See Federal Acquisition Regulations System Sec.  4.605(b).
---------------------------------------------------------------------------

F. The Revisions Do Not Create a Significant Burden on Employers

    By using existing definitions and requiring reporting of 
information easily

[[Page 49238]]

accessible to the filers, the Department has avoided imposing any 
significant burden on filers. As discussed above, the Form LM-10 uses a 
list of definitions adopted from the implementing regulations of E.O. 
13496 (Notification of Employee Rights Under Federal Labor Laws) at 29 
CFR 471.1. The Department expects that federal contractors and 
subcontractors are already familiar with these definitions because they 
are also, with minimal changes, the same definitions that already 
govern Federal contractors and subcontractors under E.O. 11246, Equal 
Employment Opportunity, and its implementing regulations. See 41 CFR 
60-1.3 (definitions regarding obligations of federal contractors and 
subcontractors). Executive Order 11246 prohibits federal contractors 
and federally assisted construction contractors and subcontractors who 
do over $10,000 in Government business in one year from discriminating 
in employment decisions on the basis of race, color, religion, sex, 
sexual orientation, gender identity or national origin. The E.O. also 
requires Government contractors to take affirmative action to ensure 
that equal employment opportunity is provided in all aspects of 
employment. Additionally, E.O. 11246 prohibits federal contractors and 
subcontractors from, under certain circumstances, taking adverse 
employment actions against applicants and employees for asking about, 
discussing, or sharing information about their pay or the pay of their 
co[hyphen]workers. E.O. 11246 is enforced by the Department's Office of 
Federal Contract Compliance Programs (OFCCP) and covers approximately 
one-fifth of the entire U.S. labor force. E.O. 11246's requirements are 
incorporated in applicable government contracts or subcontracts and 
includes nondiscrimination, notice posting,\12\ annual reporting,\13\ 
record keeping,\14\ and, for contractors that meet certain threshold 
requirements, development and maintenance of a written affirmative 
action program,\15\ among other requirements. Therefore, the Department 
expects that all filers who are federal contractors and subcontractors 
will already know their status as such under E.O. 11246 and its 
implementing regulations, see 41 CFR 60-1.3 and 60-1.5, and that most 
filers are able to easily identify the information required for Item 
12.b--their UEI and federal contracting agency or agencies.
---------------------------------------------------------------------------

    \12\ Notices to be posted, 41 CFR 60-1.43 (2022).
    \13\ Reports and other Required Information, CFR 60-1.7 (2022).
    \14\ Record Retention, 41 CFR 60-1.12 (2022).
    \15\ Affirmative Acton Programs, Sec.  60-1.40; 60-2.1 (2022).
---------------------------------------------------------------------------

    In addition, federal contractors and subcontractors are required to 
comply with E.O. 13496. Executive Order 13496 applies to federal 
contractors and subcontractors subject to the NLRA. Pursuant to E.O. 
13496, covered employers are already required to know whether they are 
federal contractors or subcontractors under the definitions used in 
this revision and, if they are, to post a notice and to inform 
employees of their rights under the NLRA, the primary law governing 
relations between unions and employers in the private sector. See 29 
CFR 471. The notice, prescribed in the regulations of the Department, 
informs employees of federal contractors and subcontractors of their 
rights under the NLRA to organize and bargain collectively with their 
employers and to engage in other protected concerted activity. The 
Department expects that most filers are subject to the NLRA.\16\
---------------------------------------------------------------------------

    \16\ Employers covered by the Railway Labor Act (RLA) are not 
covered by E.O. 13496, however, both NLRA and RLA employers are 
subject to the reporting requirements of the LMRDA. Thus, RLA 
employers may need more time to identify which employees who are the 
subject of the LM-10 report have duties relating to the performance 
of the Federal contract or subcontract. The Department expects that 
only a small number of filers will be Federal contractors or 
subcontractors subject to the RLA. The Department received no 
comments on the issues of RLA coverage or lack of NLRA coverage. The 
Department received no comments from anyone--including specifically 
from RLA-covered employers or their representatives--on this 
subject. See: https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/election/election-statistics and 
https://nmb.gov/NMB_Application/wp-content/uploads/2021/12/FY-2021-NMB-Performance-and-Accountability-Report-PAR.pdf.
---------------------------------------------------------------------------

    Several supportive comments discussed the minimal burden of the 
revision. Multiple comments indicated the limited nature of the burden 
on employers given the minimal amounts of time and effort the revisions 
necessitate, and that, for whatever burden does exist, it is justified 
by the substantial benefit to employees and the public.
    As one union commenter stated, ``OLMS is not imposing an onerous 
burden on employers with these minor revisions,'' and the revisions 
``are minor but important changes to employer's reporting 
requirements.'' The commenter went on to say that ``the proposed 
revision does not change which employers must file Form LM-10 or when 
or how often they must be filed. The revision mainly requires employers 
to check a box disclosing if they are federal contractors and, if so, 
to provide a federal unique entity identifier if applicable, and 
identify the federal agencies involved[.]'' Another union commenter 
echoed the sentiment: ``This is a modest revision that results in 
almost no additional burden on employer filers and will provide 
important information to OLMS, employees, the public, and other federal 
agencies.'' And, as another union commenter stated, ``it is worth 
noting that the proposed rule's required disclosures are narrowly 
tailored to be minimally invasive on employers.''
    Comments highlighted that the form offers little burden increase. 
``This small change will reap significant benefits while creating 
almost no additional administrative burden for LM-10 filers,'' one 
commenter stated. As another indicated, ``the Agency is proposing to 
incorporate the same definitions of `contract,' `contracting agency,' 
`contractor' and other related terms that are included in E.O. 13496, 
which is currently effective and imposes obligations on federal 
contractors and subcontractors.'' The comment continued to rightly 
point out ``federal contractors and subcontractors are generally 
required to obtain a Unique Entity Identifier (`UEI') as a condition of 
performing work on federal contracts.''
    As described in the burden analyses below, in Section VI.A(1), it 
will take filers on average five minutes to gather and enter the 
information required by this revision. This cost is not significant. 
While the Department recognizes the merits of the argument from some 
commenters that there should be no increase in the time estimate for 
the LM-10 due to this de minimis burden, especially as many filers will 
simply check ``No,'' the entry of the UEI and federal contracting 
agency(ies) will take slightly more time and the Department believes 
five minutes is a reasonable estimate for filers who have to complete 
it.

V. Additional Comments Received

A. Comments Concerning Potential Duplication of Existing Reporting 
Requirements

    One comment, filed by Members of Congress, opposed the proposed 
Form LM-10 revision because the commenters believe requesting 
contractor status on the Form LM-10 elicits duplicative information. 
The commenters reasoned that because the public can determine whether 
an employer has contracts with the federal government through other 
governmental systems, requesting federal contractor status information 
for Form LM-10 is contrary to E.O. 12866. Executive Order 12866 directs 
federal agencies to issue

[[Page 49239]]

rules that ``are required by law, are necessary to interpret the law, 
or are made necessary by compelling public need such as material 
failures of private markets to protect or improve the health and safety 
of the public, the environment, or the well-being of the American 
people.'' The comment asserts that an employee could search the Federal 
Procurement Data System (FPDS) or USASpending.gov websites to determine 
whether their employer has contracts with the federal government. The 
comment also mentions that a listing of federal government contractors 
is available from the Small Business Administration and the General 
Services Administration.
    While the Department acknowledges that some information on 
contractor status is available on other government websites, the 
Department disagrees that any duplication in public disclosure of 
contractor status negates or undermines the need for this revision or 
is contrary to E.O. 12866. The websites and databases where this 
information is currently available are either not designed for the 
general public or provide a far greater level of detail about federal 
contracts, which is not duplicated in the Form LM-10 by this rule. 
Also, as mentioned above, this minor addition to the Form LM-10 will 
significantly reduce confusion between employers with similar names, as 
it can readily distinguish which employer is which in these expansive 
databases. Thus, consistent with E.O. 12866, the Department has 
identified a problem and chosen a method which is most cost-effective 
and tailored to impose minimal burden on regulated entities. The 
information required by the revision, while minimal, is not otherwise 
easily available to the public. The change places almost no burden at 
all on reporting entities while, in contrast, the alternative solution 
offered by the comment would place the burden to research the 
reportable information on the very population for whom disclosure is 
intended to benefit.
    For example, subcontractor information is available on the GSA 
Electronic Subcontracting Reporting System (ESRS), but this information 
is made available only to individuals with a registered government or 
contractor log-in account. The LM-10 forms are offered for public 
viewing on the OLMS Online Public Disclosure Room (OPDR), which does 
not require a registered government or contractor account. Including 
contractor identification information on the Form LM-10, available on 
the OPDR, will allow employees and the public to easily identify all 
filers who are paid under federal contracts, regardless of whether they 
are a prime contractor or a subcontractor. This reporting will provide 
a more transparent representation of when federal dollars go to filers 
who may also make disbursements to labor relations consultants designed 
to persuade employees regarding their rights to organize and bargain 
collectively or surveil employees. See Form LM-10, Items 8.b. through 
8.f. This information cannot be readily ascertained from the SBA or GSA 
contractor lists.
    The reporting of contractor status on the Form LM-10 is limited to 
identifying information and is therefore minimally duplicative of the 
more detailed reporting on the USASpending.gov website or what is 
listed on the GSA and SBA contractor lists. OLMS only requires the UEI 
number and the identification of the contracting agency and no other 
details of the contracts provided on other government lists. The UEI 
number required by the Department is the same number reported on the 
USASpending.gov website, but the final rule does not require 
duplicative reporting of the detailed financial information on federal 
contracts provided on that website.
    The USASpending.gov website is compiled by the U.S. Department of 
the Treasury under the authority of the Federal Funding Accountability 
and Transparency Act of 2006 (FFATA), as amended by the Digital 
Accountability and Transparency Act (DATA Act), codified at 31 U.S.C. 
6101 note. Consistent with the FFATA, detailed information about 
federal awards must be made publicly available on USASpending.gov. The 
DATA Act expanded the FFATA for purposes that include linking ``federal 
contract, loan, and grant spending information to programs of federal 
agencies to enable taxpayers and policy makers to track federal 
spending more effectively. . . .'' \17\ The website is generally 
adapted for the American public to show constituents how the federal 
government spends money every year. Federal agencies covered by the 
DATA Act report spending data to Treasury for posting on the website 
using standardized data elements, and Treasury also gathers required 
Federal agency spending data from financial and other government 
systems (such as the Federal Procurement Data System (FPDS)). Prime 
contractors and subcontractors that received Federal awards directly 
from federal agencies also self-report data on their awards to the 
FFATA Subaward Reporting System (FSRS). The FSRS is a component of ESRS 
(mentioned above) but requires different reports than ESRS. FSRS 
requires reporting of executive compensation and sub-award recipient 
information by prime contractors, while ESRS requires reporting of the 
Individual Subcontract Report, Summary Subcontract Report, and 
Commercial Report, required, in effect, under the FFATA. One purpose of 
the DATA Act was to ``simplify reporting requirements for entities 
receiving Federal funds by streamlining reporting requirements. . . .'' 
\18\ It also provides that the method of collection and reporting data, 
in the context of subawards, shall minimize the burdens on Federal 
recipients and sub-recipients.\19\ Requesting contractor identification 
numbers is not an overly burdensome or a duplication of financial 
reporting, as it does not require any additional information required 
by the FFATA and DATA Act, but simply requires the reporting of an 
identification number already known to a federal contractor. For 
example, employers filing a Form LM-10 are not required to include 
information on whether contracts are awarded to Small Businesses, 
Women-Owned Small Businesses, Veteran-Owned Small Business, and related 
characteristics, which are to be reported to the ESRS. Reporting 
contractor identification numbers on the Form LM-10 is not 
unnecessarily burdensome for federal award recipients because the 
employer is already aware of their identification number from reporting 
under the FFATA.
---------------------------------------------------------------------------

    \17\ 31 U.S.C. 6101 note (DATA Act--Digital Accountability and 
Transparency Act of 2014, Pub. sec. 2(1)).
    \18\ Public Law 113-101, sec. 2(3).
    \19\ 31 U.S.C. 6101 note (FFATA sec. 2(d)(2)(A)); see also 31 
U.S.C. 6101 note (DATA Act sec. 5) (discussing, in general, efforts 
to avoid unnecessary duplication and burdensome reporting).
---------------------------------------------------------------------------

    An international union commenter observed that there is ``a 
significant gap in data concerning the scope of dissuasion campaigns 
undertaken by federal contractors and subcontractors'' to dissuade 
employees from joining a union. A nonpartisan organization agreed that 
the revision will help fill this information gap. Nine commenters 
supported the revision so that there will be a public record of which 
contractors engage in persuader activities. The Department agrees that 
such a public record is consistent with congressional intent to 
publicize a ``full explanation'' of reportable activities and will 
bridge an important information gap. 29 U.S.C. 433(a). These benefits 
outweigh any

[[Page 49240]]

minor duplication of contractor identifying information in government 
databases, especially when, as discussed above, some employees are not 
already aware that their employers are federal contractors. By 
including federal contractor identification on LM-10 Forms, the 
Department is linking federal contractor status with employer reporting 
to the Department to enable workers and the general public to easily 
evaluate federal spending within the context of the LMRDA. As mentioned 
above, the GSA and SBA websites provide lists of contractors within the 
context of those agencies. The SBA directory, for example, provides a 
listing of those contractors who have subcontracting plans with small 
businesses. Neither GSA nor SBA publishes reportable information under 
the LMRDA. Including basic identifying information about federal 
contractor status on LM-10 Forms allows OLMS, employees, and the 
general public to have all the relevant information in one, easily 
accessible reporting database pursuant to the LMRDA.
    Similarly, Federal contractor status as required by OLMS in this 
revision provides less detailed information than the reporting required 
by the GSA SAM.gov website and is easier for the public to access and 
use. SAM.gov is generally designed for contractors who may, among other 
tasks, access publicly available award data and federal assistance 
listings. SAM.gov includes contract data derived from the FPDS, as well 
as some additional information submitted by SAM.gov contractor account 
users. With a SAM.gov user account, one can analyze federal spending by 
federal organization, geographical area, business demographics, and 
product or service type, among other characteristics. The Department 
does not seek to duplicate this detailed contract information provided 
on SAM.gov, but rather is requesting only for Form LM-10 filers to 
report their UEI and federal agency involved. Additionally, SAM.gov 
does not focus on LMRDA-reportable activities. In contrast to SAM.gov, 
the OLMS OPDR provides Form LM-10 data to the public and does so 
without the barrier of a user account. Therefore, any duplication of 
information on the Form LM-10 poses a minimal burden, if any, to the 
reporting entity and bridges an important information gap by making 
this information more easily accessible to the general public. OLMS, 
employees, and the public should not have to research voluminous 
collections of contracting information and multiple websites to glean 
which federal contracts are being fulfilled by employees who are 
subjected to persuader, surveillance, or unfair labor practice 
activity. Employees and the general public should have the ability, by 
getting the UEI, to learn the extent to which the filer engages in 
reportable activity while providing its goods and services to the 
Federal government.
    Disclosing federal contractor status on the Form LM-10 is also 
consistent with E.O. 12866. Taken holistically, E.O. 12866 requires 
that a rulemaking identify a problem it intends to address, choose a 
method which is most cost-effective, and tailor that method to impose 
the least burden on society. Through its enforcement of the LMRDA, the 
Department ensures public, transparent reporting of certain activities 
that impact protected labor rights. The Department determined that 
filers engaging in activities that may impact protected labor rights 
should disclose whether they hold government contracts. Through this 
rule, the Department has chosen to require minimal information about 
federal contractor status. While the request of federal contractor 
status on Form LM-10 may also serve the function of the DATA Act's 
interest in linking federal expenditures to federal agency programs, as 
mentioned above, this is wholly distinct from the problem of 
transparent reporting under the LMRDA. Therefore, while the federal 
contractor status information may be available elsewhere, it does not 
make the regulation, in total, duplicative as to be in contravention of 
E.O. 12866.
    The revision will allow employees access to the ``full 
explanation'' and circumstances of employers' reportable activity, 
including federal contractor status, in a location and context in which 
it is more accessible and useful to them. While general information 
about federal contracts is provided via other means, including this 
information on the Form LM-10 furthers the interest of transparency as 
intended by the LMRDA. Employees, union organizers, and the general 
public who are reviewing LM forms are more accustomed to reviewing 
documents like the Form LM-10 than extensive procurement- and employer-
centric database platforms. Further, an employee or member of the 
public can more easily ascertain from the revised Form LM-10 whether 
the federal contract directly impacts a specified employment group 
because the federal contract identification is provided alongside 
information about the employer and subject group of employees. Minor 
redundancies in reportable information do not outweigh the benefits of 
having all LMRDA reportable information in one, easily accessible site 
on the Department's website.
    The LMRDA reporting regime emphasizes access to information at the 
cost of minor redundancies. By statute, the information reported on one 
LM form may well appear in another LM form. Employer reporting (under 
29 U.S.C. 433(a)) consists of the same information reported by labor 
relations consultants (under 29 U.S.C. 433(b)). In addition, employers 
report (under 29 U.S.C. 433(a)(1)) the same payments reported as 
receipts by labor unions (under 29 U.S.C. 431(b)(2)). Further, 
employers report (under 29 U.S.C. 433(a)(1)) the same payments reported 
by labor union officers and employees (under 29 U.S.C. 432). Plainly, 
therefore, the LMRDA was constructed to allow the public to more easily 
find relevant information by putting identical information in different 
reports targeted to different audiences.
    In addition, this revision is similar to other Department 
requirements that include minor redundancies and cross-references to 
information provided to other governmental agencies in more depth. For 
example, on Form LM-2, labor organizations are required to report 
whether they have any political action committees (PAC), the full name 
of each PAC, and in addition, they must list the name of any government 
agency with which the PAC has a publicly available report, and the 
relevant file number of the PAC.\20\ Despite being arguably redundant, 
these disclosures allow for a greater degree of transparency for union 
members and the public, by allowing viewers of the reports to connect 
such report with other labor related disclosures. The revision follows 
this same pattern when it takes three discrete pieces of information 
from locations where those interested in persuader reporting are not 
likely to look and brings it into the Form LM-10 where those who are 
interested will easily come across it.
---------------------------------------------------------------------------

    \20\ LM-2 Instructions, Item 11, Item 69.
---------------------------------------------------------------------------

B. Comments Concerning First Amendment Protected Activities and Other 
Employee and Employer Rights

    Two comments opposed the proposed Form LM-10 revision because, they 
argued, the revision would have a ``chilling effect'' on contractors' 
right to engage in First Amendment-protected speech. The commenters 
asserted that the Department intends the revision to discourage lawful 
persuader activities by federal contractors. One commenter was 
concerned that the revision would

[[Page 49241]]

``restrict fair and open competition and discriminate against nonunion 
construction workers and businesses.'' The commenters noted that under 
the LMRDA, employers are permitted to hire outside labor relations 
consultants, including attorneys, to help persuade their employees 
regarding union organizing or collective bargaining representation. The 
commenters believed that the revision would increase public pressure on 
federal contractors and will assist advocacy efforts against employers. 
The commenters opined that ``the clear intent of the proposed rule is 
to encourage labor unions and other pro-union advocates to pressure 
federal agencies to stop awarding contracts to federal contractors who 
engage in lawful persuader activity.'' The commenters expressed concern 
that the government will use the information collected as a result of 
the revision to disqualify companies that engage in persuader activity 
from being awarded federal contracts.\21\ The Department disagrees with 
these comments. The commenters' concern about a chilling effect appears 
purely speculative as they have not given any examples of how revealing 
basic identifying information of employers engaging in reportable 
activity has chilled speech or led to federal agencies barring or 
disqualifying employers from federal contracting. The argument also 
assumes bad faith on the part of labor organizations and federal 
agencies which the comment presumes will not comply with procurement 
standards.
---------------------------------------------------------------------------

    \21\ One commenter stated a fear of being ``blacklisted'' as a 
federal contractor as a specific potential cause of the chilling 
effect. Another was ``concerned the proposed rule will be used to 
steer federal contracts away from companies that exercise their 
right to speak with their employees about unionization.''
---------------------------------------------------------------------------

    There are safeguards built into the procurement process, i.e., how 
agencies select successful bidders on contracts, that protect against 
the kinds of harm the commenters envision. When awarding contracts, 
agencies are generally required to follow strict rules designed to 
promote open and fair competition among vendors, without any improper 
bias or inappropriate consideration. That includes requirements for 
announcement in advance of the criteria to be used in selecting the 
winning firms. See, for example, Federal Acquisition Regulation (FAR) 
(48 CFR) 15.203(a), on the content of requests for proposals, and FAR 
15.304(d), on evaluation factors and significant subfactors. See also 
FAR 3.101-1 which sets strict standards of conduct for the acquisition 
workforce, including ``complete impartiality'' and ``preferential 
treatment for none.'' In cases where there is reason to believe a firm 
has engaged in conduct that may be a cause for debarment or suspension, 
agencies must follow suspension and debarment regulations at FAR 
Subpart 9.4, Debarment, Suspension, and Ineligibility, or parallel 
suspension and debarment rules at Part 180 of Title 2 of the Code of 
Federal Regulations, for non-procurement transactions. Those suspension 
and debarment rules provide firms proposed for debarment or that are 
being suspended notice of such action and an opportunity to contest 
such action. See, for example, FAR 9.406-3, Procedures.
    These commentors misinterpret First Amendment jurisprudence, and 
the Department is not persuaded by their speculative assertions. 
Initially, there is some tension between the commenters' concern that 
the Department is unnecessarily duplicating information and their 
concern that the disclosure of this already available information on 
the LM-10 will have a chilling effect. While the Department agrees that 
the revision will make contractor status available in a new context, 
the commenters' free speech concerns are both speculative and 
unsupported by First Amendment precedent.
    The argument that the revision will discourage lawful persuader 
activities by federal contractors, as some commenters fear, is 
unsupported because persuader activities have been reported and 
disclosed since the inception of Form LM-10 reporting, yet no commenter 
identified evidence of a chilling effect. As discussed above, the Form 
LM-10 has always required filers to disclose the name of the employer, 
the reportable activity, and a ``full explanation of the 
circumstances'' of the activity, which encompassed identification of 
the group of employees subject to that activity. Federal contracting 
agencies have long had the means to identify federal contractors who 
also file LM-10 reports. No commenters identified evidence of 
contractors being barred, disqualified, ``blacklisted,'' or steered 
away from federal contracting as a result of such connections. If being 
publicly linked to persuader activity had a negative impact on an 
employer's ability to obtain federal contracts, that issue would likely 
have already arisen. The placement of this existing, publicly available 
information in the convenient Form LM-10 report does not inflict a 
constitutional injury, as discussed below.
    In multiple opinions, the Supreme Court has held that transparency 
promotes informed decision making amongst shareholders and the 
electorate, rather than chilling speech. See Citizens United v. Fed. 
Election Comm'n, 558 U.S. 310 (2010); McConnell v. Fed. Election 
Comm'n, 540 U.S. 93 (2003); Buckley v. Valeo, 424 U.S. 1 (1976). In 
Citizens United, the Court stated that ``disclosure permits citizens 
and shareholders to react to the speech of corporate entities in a 
proper way. This transparency enables the electorate to make informed 
decisions and give proper weight to different speakers and messages.'' 
Citizens United, 558 U.S. at 371. In upholding the disclosure 
requirements of the statute there at issue, the Court discussed Buckley 
v. Valeo and the Court's later opinion in McConnell and instructed 
that: ``Disclaimer and disclosure requirements may burden the ability 
to speak, but they . . . `do not prevent anyone from speaking'; rather 
they help citizens to `make informed choices in the political 
marketplace.' '' 558 U.S. at 367 (internal citations and quotations 
omitted). The interests served by requiring employers to report on 
persuader and surveillance activities are also congruent with those 
interests served by disclosure provisions in federal and state laws 
regulating lobbyists.\22\
---------------------------------------------------------------------------

    \22\ See U.S. v. Harriss, 347 U.S. 612, 625-626 (1954) (holding 
that ``those who for hire attempt to influence legislation'' may be 
required to disclose the sources and amounts of the funds they 
receive to undertake lobbying activities); accord, e.g., Fla. League 
of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th Cir. 
1996) (upholding state lobbyist disclosure statutes in light of 
state interest in helping citizens ``apprais[e] the integrity and 
performance of officeholders and candidates, in view of the 
pressures they face''). See also Nat'l Ass'n of Mfrs. v. Taylor, 582 
F.3d 1, 9-10 (D.C. Cir. 2009) (upholding requirement that registered 
lobbyists disclose the identity of organizations that made monetary 
contributions and actively participated in or controlled the 
registrant's lobbying activities); Kimbell v. Hooper, 164 Vt. 80, 
85-88, 665 A.2d 44 (1995) (upholding state lobbying statute against 
First Amendment challenge); Gmerek v. State Ethics Comm'n, 569 Pa. 
579, 595, n. 1, 807 A.2d 812, 822 (2002) (dissent) (collects cases 
in which state lobbying disclosure laws were upheld against First 
Amendment and other challenges).
---------------------------------------------------------------------------

    In support of its argument that the proposed revision would chill 
LM-10 filers' protected speech, one commenter cited Chamber of Commerce 
v. Brown, 554 U.S. 60 (2008). This commenter argued that the proposed 
revision is invalid for the same reasons as those relied on by the U.S. 
Supreme Court in striking down a California State law, which prohibited 
certain employers who received certain state funds from using such 
funds to ``assist, promote, or

[[Page 49242]]

deter union organizing.'' Id. at 62. The decision in Brown was based on 
the Court's determination that this prohibition was preempted by 
Section 8(c) of the NLRA because it regulated activity (non-coercive 
employer speech on the subject of union organizing) that Congress 
intended to leave unregulated. Id. at 68-69.
    The Department, as discussed above, has explicit authority from 
Congress to prescribe the form of reports that employers must file to 
disclose certain payments, including lawful payments, related to their 
activities around union organizing, collective bargaining, and 
surveillance of union activity. 29 U.S.C. 433, 438. The revision does 
not change or expand the payments or activities on which employers must 
report. Accordingly, there is no speech that was formerly protected 
from disclosure that this revision now brings to light. It simply 
requires current filers to provide additional, basic information about 
their status as a federal contractor, which will promote the 
congressional interest in free debate around issues of union organizing 
and collective bargaining.
    The Supreme Court has also held that it would not strike down a 
statute based on speculative arguments, particularly those relating to 
assertions that amount to ``self-censorship'' or, in this case, self-
censorship for fear of being disqualified as a federal contractor. U.S. 
v. Harriss, 347 U.S. 612, 626 (1954) (holding that ``those who for hire 
attempt to influence legislation'' may be required to disclose the 
sources and amounts of the funds they receive to undertake lobbying 
activities). The Court stated that the hypothetical hazards of self-
censorship or restraint are at most indirect and too remote to require 
striking down a statute which on its face is otherwise plainly within 
the area of congressional power and is designed to safeguard a vital 
national interest. Id. Indeed, the Court has held that those resisting 
disclosure can prevail under the First Amendment if they can show ``a 
reasonable probability that the compelled disclosure [of personal 
information] will subject them to threats, harassment, or reprisals 
from either Government officials or private parties.'' John Doe No. 1 
v. Reed, 561 U.S. 186, 200 (2010) (upholding the state of Washington's 
Public Records Act requirements making referendum petitions available 
to the public), citing Buckley v. Valeo, 424 U.S. 1, 74 (1976). The 
Department is requiring limited additional disclosure that is within 
its delegated authority under section 208 of the LMRDA. The commenters 
have not shown any actual basis or reasonable probability for their 
fear of being disqualified or steered away from federal contracting due 
to revealing their contractor status on the Form LM-10.
    Moreover, the Courts of Appeals for the Fourth and Sixth Circuits, 
in Master Printers of America and Humphreys, determined that a showing 
of threats, harassment, or reprisals to specific individuals must be 
shown to prove that government regulation will substantially chill free 
speech. Master Printers of America v. Donovan, 751 F.2d 700, 704 (4th 
Cir. 1984); Humphreys, Hutcheson and Mosely v. Donovan, 755 F.2d 1211, 
1220 (6th Cir. 1985). In Master Printers of America and Humphreys, the 
Courts of Appeals for the Fourth and Sixth Circuits focused on four 
factors in determining whether section 203(b) of the LMRDA had a 
deterrent effect and therefore violated free speech rights: (1) the 
degree of infringement on free speech; (2) the importance of the 
governmental interest protected by the LMRDA; (3) whether a 
``substantial relation'' exists between the governmental interest and 
the information required to be disclosed; and (4) the closeness of the 
fit between the LMRDA and the governmental interest it purports to 
further. Master Printers of America, 751 F.2d at 704; Humphreys, 755 
F.2d at 1220.
    The Fourth Circuit in Master Printers of America determined that 
the challenger had not met its burden of showing that the section 203 
disclosures had exposed its members to economic reprisal, loss of 
employment, threat of physical coercion and other manifestations of 
public hostility directed at specific individuals necessary to 
establish a ``deterrent effect.'' 751 F.2d at 704-705. In Humphreys, 
the Sixth Circuit also rejected First Amendment challenges to the 
disclosure obligation under section 203. The court concluded that the 
persuader law firm had failed to meet the ``deterrent effect'' standard 
for demonstrating an unconstitutional violation of its right to freely 
associate. 755 F. 2d at 1220-1222. The court rejected the persuader's 
free speech claim, ruling instead that the disclosures ``are 
unquestionably `substantially' related to the government's compelling 
interest'' in preventing improper activities in labor-management 
relations. 755 F. 2d at 1222. In support of that conclusion, the court 
observed that the required disclosures would help employees exercise 
their right to support or not support a union, ``enabl[ing] employees 
in the labor relations setting, like voters in the political arena, to 
understand the source of the information they are given during the 
course of a labor election campaign.'' Id. The courts were able to 
examine evidence of the alleged chilling effect in reaching their 
conclusions. Neither the Department nor the commenters, of course, have 
at this stage of the final rule the benefit of any actual evidence to 
review the effects of requiring the disclosure of whether an employer 
is a federal contractor on the Form LM-10.
    The requirement that a filer indicate whether it was a federal 
contractor or subcontractor in the prior fiscal year, and include 
related identification information, does not restrict employers from 
hiring outside labor relations consultants, including attorneys, to 
persuade employees regarding union organizing or collective bargaining, 
any more than the existing LM-10 and LM-20 reporting requirements. The 
revision does not discourage lawful persuader activities as labor 
relations consultants may still persuade employees in conformity with 
the NLRA and First Amendment rights of the employer and labor relations 
consultants. The requirement that employers report labor relations 
consultant activity is unchanged. In addition, both the public and the 
employees whose rights are at issue have an interest in more fully 
understanding the financial circumstances of employers who surveil 
employees, commit unfair labor practices, or persuade employees 
regarding their rights to organize or bargain collectively. See S. Rep. 
187 at 10-11, LMRDA Leg. Hist. at 406-07.
    Next, a commenter argued that the revision is preempted by the NLRA 
because it affects activity that is allowed by that statute. The 
Department disagrees. As discussed above, Congress was aware that some 
reportable activity would be lawful under the NLRA and still chose to 
require that that same employer activity be publicly reportable under 
the LMRDA. See S. No. 86-187. Rep, at 81-82, reprinted in 1 LMRDA Leg. 
Hist., at 477-478.
    One commenter said that the revision will support employees and the 
public as they choose whether to ``engage in their own appropriate 
First Amendment protected persuasion activity.'' Another commenter 
asserted that it is ``improper for OLMS to collect information with the 
objective of encouraging the media and advocacy groups to use it to 
browbeat federal contractors who engage in persuader activity.'' The 
Department rejects the contention that the revision is intended to 
encourage the browbeating of federal contractors. Like the contention 
above that the revision will chill speech, it is speculative and 
unsupported by the

[[Page 49243]]

facts. Both presuppose that an employer that discloses persuader 
activity and federal contractor status will be subjected to 
intimidation. However, LM-10 filers' persuader activities have long 
been available to the public by the very same forms, and the filers' 
federal contract status has always been discoverable by the public 
through different data sets, yet no commenter asserted that 
``browbeating'' has occurred. As was stated in the proposed revision, 
the objective of these revisions is to provide increased transparency 
for the public as a whole. This public exposure will allow for an open 
public discussion and debate, not intimidation, about the prevalence of 
persuader activity and the extent to which specific federal agencies 
might be indirectly supporting such activities by doing business with 
employers that engage in persuader activities.
    One commenter, a non-profit research and advocacy organization, 
believed that the revisions would result in small and mid-sized 
businesses not seeking legal advice or counsel on their rights and 
responsibilities under the NLRA or the Railway Labor Act. The commenter 
asserted that these smaller businesses ``are more likely to be run by 
managers with little experience relating to collective bargaining and 
consequently more need to seek outside legal counsel to advise them on 
their legal rights and responsibilities.'' The commenter said that 
these ``companies are less likely to seek that advice if doing so gets 
them flagged on a public list.'' The commenter believed that the 
``legal firms that these companies could afford are less likely to 
provide this advice due to concern over targeted campaigns by union 
activists.'' The commenter asserted that this ``will result in workers 
being less-informed of their rights under those laws, as unions are 
unlikely to fully explain rules that allow workers to opt out of 
membership or to hold their union to account.'' Further, according to 
the commenter, ``there is reason to be concerned that it could result 
in workers being uninformed regarding the practical impact of 
collective bargaining on their workplace and their relationship with 
their employer, their rights under the Supreme Court's Beck decision 
\23\ or any rights they may have if they reside in a state with a right 
to work statute.'' The Department disagrees with the premise of this 
comment because seeking legal advice does not trigger an employer's 
duty to file a Form LM-10. See 29 U.S.C. 433(c). Therefore, the 
commenters conclusions based on that premise are also unpersuasive. 
Moreover, these employers already have a duty to file Form LM-10s for 
any covered activity. The principal disclosures secured by the Form LM-
10 are unchanged; there is no evidence that the addition of a 
government contractor checkbox would in itself chill any activities.
---------------------------------------------------------------------------

    \23\ Communications Workers of Am. v. Beck, 487 U.S. 735 (1988).
---------------------------------------------------------------------------

    The comments also referenced the right of employees to obtain 
balanced and informed input from both the employer and the labor 
organization when employees decide whether to unionize. Again, the 
commenters seemed concerned that the revision would affect this balance 
by chilling employer free speech or making decisions for workers 
instead of allowing workers to make their own organizing and collective 
bargaining decisions. As discussed above, the Department disagrees. The 
commenters offered no specific examples of chilled speech, and the 
revision takes no position on whether or how employees should exercise 
their rights--it simply enables employees to easily access information 
that gives them more context about those decisions.

C. Comments Outside the Scope of This Rulemaking

    Some comments offered perspectives on issues that fell outside the 
scope of this rulemaking or offered reasons for the revision upon which 
the Department does not rely. While not amongst the reasons that the 
Department is adopting the revision, some commenters provided examples 
of how the information made available by the revision might be helpful 
outside the LMRDA context, which the Department will address in this 
section. Although the Department does not rely on these examples as a 
reason to promulgate the revision, the collateral consequences of the 
rule may provide additional benefits for the public. For example, a 
union commenter highlighted that the form may prompt employees of 
federal contractors to become aware of protections afforded to them 
under the Walsh-Healey Public Contracts Act. Similarly, the commenter 
outlined how a similar dynamic exists between private sector service 
employees and the McNamara-O'Hara Service Contract Act, as well as 
other Executive Orders. And regardless of their industry, the commenter 
believes employees should be made aware of their employer's status 
because all federal contractor employees are protected when 
whistleblowing under the False Claims Act when reporting certain 
instances in which their employer attempts to defraud the government. 
The Department believes these potential benefits are excellent examples 
of the derivative good that the increased transparency of the revisions 
will provide.
    Further, even knowing that the employer is a contractor, employees 
do not necessarily know how and where they can find additional 
information about the contractor. With knowledge of the contractor 
status and the UEI, workers and the public will be able to connect the 
Form LM-10 reports with other disclosures, as mentioned by this 
commenter. This cross-referencing furthers transparency in a variety of 
areas while limiting the burden on filers. Therefore, the efficient 
accessibility of federal contractor status is in the interest of the 
American public and any minimal duplication that may exist serves the 
interest of transparency.
    Regarding revisions to Form LM-10, many unions offered an array of 
amendments to other items on the form, in addition to Item 12. One 
policy center commenter suggested that the Department ``should look 
into requiring that federally-assisted contractors check a similar box, 
along with state and local contractors.'' Such adjustments fall outside 
the scope of the proposed revisions, and while it will not be 
considered for adoption here, the Department will make note of this 
request as it considers future rulemaking.
    Multiple union commenters indicated that the Department must 
significantly increase its Form LM-10 enforcement and offered 
statistics on declining reports being filed over the last decade 
despite this not being accompanied by a decrease in persuader activity. 
One union commenter provided specific examples of particular employers 
who, in the commenter's opinion, owed Form LM-10s. The Department 
continues to enforce all provisions of the reporting requirements of 
the LMRDA, including the Form LM-10, and any employee, union organizer, 
or other member of the public may report instances in which it believes 
a Form LM-10 is owed and has not been submitted by an employer.\24\
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    \24\ Members of the public may submit information about entities 
which need to report by emailing [email protected].
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    A union commenter argued that the Form LM-10 should be filed as 
soon as the employer engages the services of labor relations 
consultants, offering immediate availability to the public. The LMRDA 
does not offer flexibility in when the Form LM-10 (or any other 
employer report) must be filed, explicitly requiring annual reporting 
in Section 203(a) of the Act. 29 U.S.C.

[[Page 49244]]

433(a). The Form LM-20 documenting the labor relations consultant-side 
of the persuader agreement, on the other hand, is due within 30 days of 
the labor relations consultant entering into the agreement. 29 U.S.C. 
433(b).
    Multiple commenters advocated for additional minor changes. One 
union commenter offered a number of additional changes to the LM-10 and 
its instructions focused on providing more examples of reportable 
activity under Items 8.b, 8.c, and 8.d. Another commenter outlined 
various form sections and new, recommended form language. While the 
Department agrees with providing additional examples of reportable 
activity to increase compliance rates, this can be accomplished through 
the publicly available Form LM-10 Frequently Asked Questions and other 
compliance materials. Further alterations to the instructions and form 
beyond those outlined in the revision proposal are out of the scope of 
this rulemaking.
    Some union commenters discussed the idea of updating the Electronic 
Forms System to allow for cross-matching LM-20s and LM-21s to LM-10s. 
These commenters, as well as others, also advocated vigorously that the 
focus of any reporting clarifications should be regarding activity 
pursuant to section 203(a)(2) and (3), 29 U.S.C. 433(a)(2) and (3), not 
section 203(a)(4) and (5), 29 U.S.C. 433(a)(4) and (5), even offering 
numerous examples for those provisions that they believe should be 
explicitly stated in the instructions.\25\ These commenters offered 
examples even for section 203(a)(4), emphasizing the holistic approach 
that improving the Form LM-10 over time should take.
---------------------------------------------------------------------------

    \25\ Section 203 (a)(4) and (a)(5) require reporting in 
association with an agreement or arrangement and payment to a labor 
relations consultant or other independent contractor where an object 
thereof, directly or indirectly, is to persuade employees to 
exercise or not to exercise, or persuade employees as to the manner 
of exercising, the right to organize and bargain collectively 
through representatives of their own choosing, or undertakes to 
supply such employer with information concerning the activities of 
employees or a labor organization in connection with a labor dispute 
involving such employer. 29 U.S.C. 433(a)(4)-(5). Whereas 203(a)(2) 
and (a)(3) require the employer to file a report for payments to 
employees with an object to persuade other employees to exercise or 
not to exercise the right to organize and bargain collectively 
through representatives of their own choosing or expenditures 
wherein their object is to interfere with, restrain, or coerce 
employees in the exercise of the right to organize and bargain 
collectively through representatives of their own choosing, or is to 
obtain information concerning the activities of employees or a labor 
organization in connection with a labor dispute involving such 
employer. Id. at 433(a)(2)-(3).
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    While ultimately these concerns fall outside the scope of this 
rulemaking, the Department is reviewing these examples and those 
submitted by other commenters. Compliance assistance material, as 
mentioned, is another excellent avenue for providing examples so that 
employers understand the activity that they should report.
    One comment advocated for specific factors that the government 
should consider when awarding federal contracts. Another commenter said 
that the revision is not necessary to prevent federal payments for 
persuader activities because the current regulations regarding E.O. 
13494 are sufficient. These topics are outside the scope of the 
Department's rule. In making the revision, the Department is not 
relying on any benefits it may provide in enforcement of E.O. 13494 or 
other federal procurement standards.

D. The Revision May Provide Other Benefits to the Government

    While not amongst the reasons that the Department is adopting the 
revision, some commentors raised other benefits to the government, 
outside of the LMRDA context, that the Department will address in this 
section. First, regulations and an Executive Order prohibit federal 
contractors from obtaining reimbursement from the Government for the 
costs of any activities they undertake to persuade employees to 
exercise or not to exercise, or concerning the manner of exercising, 
the right to organize and bargain collectively. E.O. 13494, 74 FR 6101; 
48 CFR 31.205-21. Several commenters noted that the LM-10 revision is 
consistent with E.O. 13494. A union commenter remarked, ``this 
[revision] will also serve an important governmental function . . . 
enabl[ing] the public, the various federal contracting agencies, 
Congress, OLMS, and any other federal agencies to better track the use 
of federal taxpayer dollars and federal funds.'' A policy institute 
commenter stated the new disclosure will make it easier for federal 
agencies to identify the work that should not be reimbursed under 
federal acquisition regulations and E.O. 13494. The Department agrees 
that is a possible residual benefit of the revision. One individual 
commenter stated ``[t]he federal government has a special interest in 
the companies it gives federal contracts to and therefore should be 
able to monitor which companies are federal contractors when looking at 
the Form LM-10.'' Although these are not the Department's reasons for 
the Form LM-10 revision, they may be secondary benefits of the rule.
    Other commenters remarked on a need for the Department to work 
closer with other agencies, especially the NLRB, to identify reportable 
activities. While the information gained through the revision could aid 
in efforts to prevent circumvention and evasion of reporting 
requirements occurring among federal contractors, such efforts are 
outside of the scope of this rule.

VI. Regulatory Procedures

A. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 14094 (Modernizing Regulatory Review), and 13563 (Improving 
Regulation and Regulatory Review)

    Under E.O. 12866 (as amended by Executive Order 14094), the Office 
of Management and Budget (OMB)'s Office of Information and Regulatory 
Affairs determines whether a regulatory action is significant and, 
therefore, subject to the requirements of the E.O. and review by OMB. 
58 FR 51735. As amended by Executive Order 14094, section 3(f) of 
Executive Order 12866 defines a ``significant regulatory action'' as a 
regulatory action that is likely to result in a rule that may: (1) have 
an annual effect on the economy of $200 million or more; or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local, territorial, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities or the principles set 
forth in the Executive Order. OMB has determined that this revision is 
a significant regulatory action under E.O. 12866.
    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; the regulation 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 those approaches that maximize net benefits. E.O. 13563 
recognizes that some benefits are difficult to quantify and provides 
that, where appropriate and permitted by law, agencies may consider and 
discuss qualitative values that are difficult or impossible to 
quantify, including equity, human dignity, fairness, and distributive 
impacts.

[[Page 49245]]

1. Costs of the Updated Form LM-10 for Affected Employers
    The Form LM-10 is filed by private business entities that engage in 
certain financial transactions or arrangements, and these employer 
entities only have reporting obligations during fiscal years in which 
the entity makes such transactions or enters in such arrangements. As 
such, the Form LM-10 is not an annually mandatory form, so not all 
employers must file the Form LM-10 in a given year. Further, as has 
been discussed, the revisions to the Form LM-10 do not add a new form 
or remove any forms, nor does it expand or contract the circumstances 
under which it is necessary for an employer to file an LM-10. This 
revision slightly changes the structure of Item 12 by adding one 
checkbox and two items for certain filers. The Department will account 
for the potentially minimal costs of the slight changes to the 
structure of Item 12.
    Based upon estimates for the existing Form LM-10 and other LM 
forms, the Department adopts its proposed estimate that the new Item 
12.b. will take approximately 5 minutes to complete, thus adding 
approximately 5 minutes of reporting burden to the existing Form LM-10 
(which the current existing instructions estimate to take approximately 
35 minutes to complete, including the current Item 12). Five minutes is 
an estimate that takes into account that not all filers will be federal 
contractors or subcontractors and not all federal contractors or 
subcontractors that file will be required to complete the two lines in 
Item 12.b.
    The Department made this burden determination for the following 
reasons. Some filers will spend zero minutes on Item 12.b. because, 
after only checking ``Yes'' to Item 8.a., the form will automatically 
check ``N/A'' and grey out the rest of Item 12.b. as no answer will be 
required. Many filers will need less than 5 minutes to address Item 
12.b. because they will only need to check ``No,'' to indicate that 
they are not a federal contractor or subcontractor.
    The Department does not attribute any burden to the revision's 
clarification requiring the filer to provide identifying information 
about the employees who are the subject of the employer's activities. 
This has always been a requirement. See unrevised Item 12 (``Provide a 
full explanation identifying the purpose and circumstances of the 
payments, promises, agreements, or arrangements included in the report. 
Your explanation must contain a detailed account of services rendered 
or promised in exchange for promises or payments you have already made 
or agreed to make. Your explanation must fully outline the conditions 
and terms of all listed agreements.''). This necessarily includes 
identifying certain payments, expenditures, agreements, and 
arrangements regarding employees.
    As described above, federal contractors and subcontractors subject 
to reporting requirements are already aware of their UEI (if they have 
one) and will need no more than 5 minutes to complete Item 12.b. 
Checking ``Yes'' regarding their status as a federal contractor or 
subcontractor will only take a few minutes because most federal 
contractors and subcontractors are already required to be familiar with 
the definitions here regarding that status, which are based on E.O. 
11246 and E.O. 13496 and their implementing regulations. See 41 CFR 60-
1.3 (definitions regarding obligations of federal contractors and 
subcontractors); 29 CFR 471 and note 3, supra (including eight 
definitions OLMS adopts). The Department received some comments in 
support of its time estimate and no comments indicating that 
contractors need more time to complete Form LM-10 based on these 
revisions or that the Department's estimate is inaccurate.
    Similarly, most federal contractors and subcontractors should be 
able to easily enter their UEI. See note 1, supra. If a filer does not 
have a UEI, the filer should so state in Item 12.b. Along with their 
UEI, federal contractors and subcontractors will enter the name of the 
federal contracting agency(ies) on the two lines in Item 12.b. If 
providing the name of a contracting agency would reveal classified 
information, the filer may omit the name of the agency.
    Employers covered by the Railway Labor Act (RLA) are not covered by 
E.O. 13496. Executive Order 13496 applies to federal contractors and 
subcontractors subject to the NLRA. Pursuant to E.O. 13496, NLRA 
covered employers are required to know whether they are federal 
contractors or subcontractors and, if they are, to post a notice and to 
inform employees of their rights under the NLRA, the primary law 
governing relations between unions and employers in the private sector. 
See 29 CFR part 471. The notice, prescribed in the regulations of the 
Department, informs employees of federal contractors and subcontractors 
of their rights under the NLRA to organize and bargain collectively 
with their employers and to engage in other protected concerted 
activity. RLA employers do not have this posting requirement and 
therefore may need more time to identify whether the employees who are 
the subject of the LM-10 report have duties relating to the performance 
of a federal contract or subcontract.
    While some RLA-covered employers may need more than 5 minutes, 
because they may not be immediately familiar with whether the subject 
group of employees perform work on a federal contract or subcontract 
(for Item 12.b.), the Department does not expect RLA-covered filers to 
be as numerous as NLRA-covered filers. The Department presumes that the 
large majority of employers that constitute federal contractors or 
subcontractors would need no more than 5 minutes for Item 12.b., 
because they will be covered by the NLRA and therefore they will 
already be required to retain information relevant to Item 12.b., 
including whether the subject group of employees performed work under 
such contracts, pursuant to E.O. 13496 (Notification of Employee Rights 
Under Federal Labor Law). No comments received opposed this view.
    While a few filers may have a slightly higher time burden, and some 
will have a time burden that is lower than 5 minutes, the Department 
has accounted for this in determining the estimated time burden of 5 
minutes. The Department asked for comment on this point, specifically 
asking whether to increase the estimate to 15 minutes. Some commenters 
noted that the additional time burden was insignificant or would be 
substantially less than 5 minutes, and none of the commenters argued 
for greater than 5 minutes. Thus, the Department adopts its five-minute 
estimate.
    The Department estimates that the 5 additional minutes, just as the 
previous 35-minute total estimate, represents an estimate of affected 
filers. Indeed, not all Form LM-10 filers will need to complete the new 
Item 12.b.\26\ More specifically, filers need not fill out Item 12.b. 
if they have only checked ``Yes'' to Item 8.a. Rather, only if a filer 
answers ``Yes'' to any of Items 8.b.-8.f. would they need to answer 
Item 12.b. Additionally, filers who check ``No'' on Item 12.b. will not 
have to enter any further information in Item 12.b., further decreasing 
the estimated time burden. Further, because the Form LM-10 represents a 
situationally occurring reporting requirement rather than an annual 
reporting requirement, it would be imprudent to try to estimate 
differing burden levels associated with first-year
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    \26\ In FY 22, based upon an electronic review of reports 
submitted, OLMS received approximately 235 Form LM-10 reports 
covering persuader-related transactions and agreements, among the 
496 total Form LM-10 reports received during that year. See https://www.dol.gov/agencies/olms/data.

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[[Page 49246]]

exposure and subsequent exposures to the new questions.
    To determine the cost increase per Form LM-10 filer associated with 
the new Item 12, and as proposed, the Department utilized an approach 
consistent with the information collection request (ICR) filed with the 
Office of Management and Budget pursuant to the Paperwork Reduction Act 
(PRA). In the existing ICR, the Department assumed that employers would 
hire a lawyer to complete the form, and it derived the average hourly 
salary for lawyers ($71.17) from the Occupational Employment and Wages 
Survey, May 2021 survey (released in March 2022), Table 1, from the 
Bureau of Labor Statistics (BLS), Occupational Employment Statistics 
(OES) Program. See: https://www.bls.gov/oes/current/oes231011.htm. 
Further, the Department determined the total compensation (salary plus 
fringe benefits) by increasing the hourly wage rate by approximately 
45.0 percent, which is the percentage total of the average hourly 
benefits compensation figure ($12.52 in December 2021) over the average 
hourly wage figure ($27.83 in December 2021). See Employer Costs for 
Employee Compensation Summary, September 2021 (released in December 
2021), from the BLS at http://www.bls.gov/news.release/ecec.nr0.htm. 
Thus, the Department increased its estimate of the total hourly 
compensation for lawyers to $103.20 ($71.17 x 1.450).
    As such, the average individual employer filing the LM-10 as 
modified under this rule can expect to incur an increased cost per year 
of, approximately, $8.60 ($103.20 x 5/60 = $8.60).
    Although not all Form LM-10 filers will need to complete Item 
12.b., the Department nevertheless estimates that each of the 
approximately 580 annual Form LM-10 filers (based upon a 5-year average 
of submitted reports from FYs 18-22) will incur the additional 5 
minutes of annual reporting burden. See: https://www.dol.gov/agencies/olms/data. As such, the overall cost of this revision for all entities 
filing a Form LM-10 per year is $4,988 ($8.60 x 580 reporting entities 
= $4,988). The Department asked for comments on this approach, and, 
other than the comments addressed above, did not receive any response.
2. Summary of Costs
    In sum, this revision to the Form LM-10 has an approximated 10-year 
cost of $49,880 (10 years x $4,988 per year = $49,880) spread across 
580 separate yearly Form LM-10 filers. OLMS does not believe that this 
cost will cause a significant burden on reporting entities.
3. Benefits
    The revision furthers the purpose of the LMRDA. The Act provides 
that ``in the public interest, it [is] . . . the responsibility of the 
Federal Government to protect employees' rights to organize, choose 
their own representatives, bargain collectively, and otherwise engage 
in concerted activities for their mutual aid or protection[.]'' 29 
U.S.C. 401(a). Congress found that to accomplish this objective, ``it 
is essential that labor organizations, employers, and their officials 
adhere to the highest standards of responsibility and ethical conduct 
in administering the affairs of their organizations, particularly as 
they affect labor-management relations.'' Id. Congress simultaneously 
found that public reporting by employers was one way to accomplish 
this, given that the substance of employer persuader activities was 
often ``unethical.'' S. Rep. 187 at 11, LMRDA Leg. Hist. at 407.
    The Form LM-10 reporting requirement is based on Congress's 
concerns over the ``large sums of money [that] are spent in organized 
campaigns on behalf of some employers'' on persuader activities that 
``may or may not be technically permissible'' and Congress's 
determination that the appropriate response to such persuader campaigns 
is to disclose them in the public interest and for the preservation of 
``the rights of employees.'' See S. Rep. 187 at 10-12, LMRDA Leg. Hist. 
at 406-07.
    As set forth in Section I, Statutory Authority, above, LMRDA 
Section 208 authorizes the Secretary to ``issue . . . regulations 
prescribing the form and publication of reports required to be 
filed[.]'' 29 U.S.C. 438. The statutory provision authorizing the 
issuance of the Form LM-10 describes the data and information to be 
reported in the Secretary's form. Employers shall file with the 
Secretary a report, in a form prescribed by the Secretary, signed by 
the employer's president and treasurer or corresponding principal 
officers showing in detail the date and amount of each such payment, 
loan, promise, agreement, or arrangement and the name, address, and 
position, if any, in any firm or labor organization of the person to 
whom it was made 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. 29 U.S.C. 433(a). The statutory 
intent to require employers to provide a ``full explanation'' of 
payments was reflected in the Form LM-10 the Secretary established. 
Employers are told to provide a ``full explanation'' of the 
circumstances of all such payments, including the terms of any 
agreement or understanding pursuant to which they were made. 29 U.S.C. 
433(a).
    The Form LM-10 serves the public as well as the employees whose 
rights are at issue. Both have an interest in understanding the full 
scope of activities undertaken by employers to persuade employees 
regarding the exercise of their rights to organize or bargain 
collectively, to surveil employees, or to commit unfair labor 
practices. See S. Rep. 187 at 10-11, LMRDA Leg. Hist. at 406-07. This 
interest is heightened when the employees' own tax dollars may be 
indirectly funding an employer's reportable activities. The federal 
government also has an interest in knowing whether it is paying for 
goods and services from an employer who would seek to disrupt the 
harmonious labor relations that the federal government is bound to 
protect. See 29 U.S.C. 401(a). OLMS has authority to protect this 
interest.
    Today's revision, as with the proposal, explains that one of the 
``circumstances'' that must be explained is whether the payments 
concerned employees performing work pursuant to a federal contract or 
subcontract. If so, the filer must provide its UEI, if it has one, and 
name the relevant federal contracting agency. The reporting 
requirements associated with the unrevised Form LM-10 already called 
for the reporting of other aspects of an employer's contact and 
identifying information as part of the ``full explanation of the 
circumstances'' of the reportable activity. The revision clarifies that 
that ``full explanation'' continues to require filers to identify the 
subject group of employees (e.g., the particular unit or division in 
which those employees work).
    The revision to the Form LM-10 will therefore benefit employers in 
the filing of complete and accurate forms. By updating the form and 
instructions to clearly and accurately describe the information 
employers must disclose, the final rule will facilitate their 
understanding and compliance, thereby reducing incidents of 
noncompliance and associated costs incurred when noncompliant.

[[Page 49247]]

    The revision will also benefit filers' employees and the public. As 
discussed above, employees will more fully understand the circumstances 
under which they seek to exercise their rights when they know the 
contractor status and UEI of their employer, the federal agency 
involved, as well as the division or unit of the employees whose rights 
to organize, choose their own representatives, bargain collectively, 
and otherwise engage in concerted activities the employer seeks to 
influence. The revision will ensure that, as Congress envisioned, 
persuader activity that is most often ``disruptive of harmonious labor 
relations and fall[s] into a gray area'' will be ``exposed to public 
view.'' S. Rep. 187 at 11, LMRDA Leg. Hist. at 407.
    The revision thus supports harmonious labor relations consistent 
with the LMRDA. One intent of the Act is to support a harmonious 
relationship among employees, labor organizations, employers, and labor 
relations consultants. This requires transparency and accountability 
not just for labor organizations, but employers and labor relations 
consultants as well. Congress intended the LMRDA to provide for the 
elimination and prevention of improper practices on the part of ``labor 
organizations, employers, labor relations consultants and their 
officers and representatives.'' 29 U.S.C. 401(c) (emphasis added).
    The proposed rule increases transparency but does not change the 
criteria that determines which employers are required to file the Form 
LM-10. The revision also does not impair any rights that filers had 
prior to the change to Item 12, including First Amendment rights, as 
addressed above in Part V.B. It does not increase required filers' 
liability in connection with activities that they already had to report 
and does not impose duties to file reports that filers did not already 
have under the LMRDA. It adds, for certain filers only, the 
straightforward step of providing basic identifying details regarding 
contractor status that filers will be able to quickly enter on the Form 
LM-10. Consistent with the statutory scheme enacted by Congress, the 
revision outlines aspects of the ``full explanation'' that filers must 
report on the Form LM-10. 29 U.S.C. 433(a).
    Congress believed that employer payments and activities aimed at 
employee unionization efforts should be made public even if they are 
lawful.\27\ See S. No. 86-187. Rep, at 81-82, reprinted in 1 LMRDA Leg. 
Hist., at 477-478. Among the concerns that prompted Congress to enact 
the LMRDA was employers retaining labor relations consultants whose 
actions discouraged or impeded the right of employees to organize labor 
unions and to bargain collectively under the NLRA, 29 U.S.C. 151 et 
seq. See, e.g., S. No. 86-187. Rep, at 6, 10-12, reprinted in 1 LMRDA 
Leg. Hist., at 397, 402, 406-408. Therefore, the Department finds that 
employer reporting on persuader, surveillance and unfair labor practice 
activity is a fundamental part of the Act.
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    \27\ Congress recognized that some of the persuader activities 
occupied a ``gray area'' between proper and improper conduct and 
chose to rely on disclosure rather than proscription, to ensure 
harmony and stability in labor-management relations. See S. Rep. No. 
86-187, at 5, 12; 1 LMRDA Leg. Hist., at 401, 408.
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    The revision to Form LM-10 will increase transparency regarding 
which federal contractors and subcontractors are engaging in persuader 
activities. Confirming a filer's status as a federal contractor, as 
well as its Unique Entity Identifier and the federal contracting agency 
involved, as part of a full explanation of persuader activities will 
provide a method for the public and employees to quickly identify which 
federal contractors are reporting persuader activities in a given year.
    Increased transparency also informs the public of when federal 
monies go to federal contractors who subject their employees to 
persuader, surveillance, or interference activity, and thus protects 
harmonious labor relations, even if these activities are not unlawful. 
See S. Rep. 187 at 10-12, LMRDA Leg. Hist. at 406. Given the potential 
for disruption, the public, like employees, has an interest in knowing 
whether the government is indirectly funding persuader activity by 
engaging in business with these companies. The required disclosure of 
such information is consistent with and fully authorized by sections 
203 and 208 of the LMRDA and their broad grant of authority to 
prescribe the form of the required reports. 29 U.S.C. 433 and 438.
    Congress authorized the Department to collect detailed reports from 
employers. 29 U.S.C. 433 and 438. The Senate Report explained that the 
Department's collection and public disclosure of employer reports under 
section 203 ``will accomplish the same purpose as public disclosure of 
conflicts of interest and other union transactions which are required 
to be reported'' under other sections of the bill that was to become 
the LMRDA. S. Rep. No. 86-187, at 5, 12, reprinted in 1 LMRDA Leg. 
Hist., at 401, 408.\28\ The Senate Report also explained that employers 
required to file must ``file a detailed report.'' Consistent with this 
congressional intent, Form LM-10 reports have required a variety of 
details from employers including whether they are partnerships, 
corporations, or individuals. See Form LM-10, Item 7. Similarly, the 
revision now adds an additional piece of identifying information in 
Item 12.b. for certain filers--whether they are federal contractors or 
subcontractors and, if so, their UEI and agency involved. This revision 
ensures that filers fully explain the circumstances of all covered 
payments, as required by the statute.
---------------------------------------------------------------------------

    \28\ H.R. Rep. No. 86-741 (1959), at 12-13, 35-37, reprinted in 
1 LMRDA Leg. Hist., at 770-771, 793-795, contained similar 
statements. However, it should be noted that the House bill 
contained a much narrower reporting requirement--reports would be 
required only if the persuader activity interfered with, restrained, 
or coerced employees in the exercise of their rights, i.e., if the 
activity would constitute an unfair labor practice. The House bill 
also contained a broad provision that would have essentially 
exempted attorneys, serving as consultants, from any reporting. In 
conference, the Senate version prevailed in both instances, 
restoring the full disclosure provided in the Senate bill. See H. 
Rep. No. 86-1147 (Conference Report), at 32-33; 1 LMRDA Legis. 
Hist., at 936-937.
---------------------------------------------------------------------------

    Congress declined to enumerate each ``circumstance [ ]'' to be 
reported, delegating authority to the Secretary to determine the 
relevant details when prescribing the form and publication of the Form 
LM-10. The Department finds that some employees may not be aware that 
their work is pursuant to a federal contract and that the revision adds 
a level of accountability envisioned by the LMRDA. It adds identifying 
details regarding filers' contractor status that are part of the ``full 
explanation'' Congress intended to be publicized under the Act.
    Over the decades, employer efforts to defeat unions have become 
more prevalent, with more employers turning to union avoidance 
consultants.\29\

[[Page 49248]]

Further, members of Congress have noted recently that federal 
contractors have engaged in such agreements and activities.\30\ As the 
Agency responsible for promoting transparency around management 
attempts to influence employees' organizing and collective bargaining 
rights, OLMS closely monitors developments in the ways management 
interacts with union organizing efforts. As union avoidance activity 
increases, it is well within OLMS's role to increase the quality and 
utility of the information being disclosed on such activity.
---------------------------------------------------------------------------

    \29\ Celine McNicholas, et al., Unlawful: U.S. Employers Charged 
with Violating Federal Labor Law in 41.5 percent of all Union 
Elections, Economic Policy Institute, (Dec. 11, 2019) available at 
https://www.epi.org/publication/unlawful-employer-opposition-to-union-election-campaigns/ (``The data show that U.S. employers are 
willing to use a wide range of legal and illegal tactics to 
frustrate the rights of workers to form unions and collectively 
bargain . . . . [E]mployers spend roughly $340 million annually on 
`union avoidance' consultants to help stave off union elections . . 
. . Over the past few decades, employers' attempts to thwart 
organizing have become more prevalent, with more employers turning 
to the scorched-earth tactics of `union avoidance' consultants.''); 
Heidi Shierholz et al., Latest Data Release on Unionization, 
Economic Policy Institute, (Jan. 20, 2022) available at https://www.epi.org/publication/latest-data-release-on-unionization-is-a-wake-up-call-to-lawmakers/ (describing how ``it is now standard, 
when workers seek to organize, for employers to hire union avoidance 
consultants''); John Logan, The New Union Avoidance 
Internationalism, 13 Work Org., Lab. & Globalisation 2 (2019) 
available at https://www.scienceopen.com/hosted-document?doi=10.13169/workorgalaboglob.13.2.0057; Thomas A. Kochan 
et al., U.S. Workers' Organizing Efforts and Collective Actions: A 
Review Of The Current Landscape, Worker Empowerment Research 
Network, (June 2022) available at https://mitsloan.mit.edu/sites/default/files/2022-06/Report%20on%20Worker%20Organizing%20Landscape%20in%20US%20by%20Kochan%20Fine%20Bronfenbrenner%20Naidu%20et%20al%20June%202022.pdf; In 
Solidarity: Removing Barriers to Organizing, Hearing Before the 
United States House Committee on Education and Labor, 117th Congress 
(September 14, 2022), available at https://edlabor.house.gov/hearings/in-solidarity-removing-barriers-to-organizing.
    \30\ Should Taxpayer Dollars Go to Companies that Violate Labor 
Laws?, Comm. on the Budget, 117th Congress (May 5, 2022), available 
at https://www.budget.senate.gov/hearings/should-taxpayerdollars-go-to-companies-that-violate-labor-laws (discussing the propriety of 
government contracting with Federal contractors that engage in legal 
and illegal tactics, including ``union busters,'' to dissuade 
workers from exercising their organizing and collective bargaining 
rights).
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    The noted prevalence of persuader activity accordingly increases 
the interest of the federal government in obtaining information about 
employers' spending on reportable activities. In enacting the LMRDA, 
Congress was concerned with the impact of persuader activities and 
believed that increased transparency about employer efforts to persuade 
employees regarding their organizing and collective bargaining rights 
would benefit workers and the public. Congress found that most of this 
kind of persuader activity is ``disruptive of harmonious labor 
relations,'' even if lawful, and determined that workers and the public 
needed disclosure of persuader activities. S. Rep. 187 at 12, LMRDA 
Leg. Hist. at 406. The revision furthers this statutory purpose.
    The federal government has an increased interest in fully 
identifying employers who may be disrupting the harmonious labor 
relations that the federal government is bound to protect when those 
employers are receiving tax dollars through federal contracts. See 29 
U.S.C. 401(a). In other words, greater transparency is even more 
important when persuader activities are increasingly undertaken by 
employers that receive federal funds through contracting relationships. 
See E.O. 13494 (reiterating ``the policy of the United States to remain 
impartial concerning any labor-management dispute involving Government 
contractors.'').
    Like the federal government itself, workers and the public also 
have a strong interest in spending choices by federal contractors. 
Therefore, whether a filer is a federal contractor may be relevant 
information to employees as they choose how to exercise their 
organizing and collective bargaining rights. The Department is not 
revising the LM-10 because it expects employees to make a particular 
choice regarding how they wish to exercise their organizing and 
collective bargaining rights. Instead, the revision outlines further 
information that employees may choose to consider when determining 
whether and how to exercise their rights. It is therefore part of the 
``full explanation'' that Congress envisioned employers reporting. 29 
U.S.C. 433(a).
    Publicizing which Form LM-10 filers are federal contractors will 
give workers more information as they choose whether or not to speak 
out against lawful and unlawful efforts by their employer to convince 
them to remain unrepresented. Such workers and the public are entitled 
to know whether public funds may indirectly lead to any sort of 
disruption of labor relations and workers' rights.
    Employees have a particular interest in knowing whether their 
employers are federal contractors because, as taxpayers themselves, 
those employees have an interest in knowing whether they may be 
indirectly financing persuasion campaigns regarding their own rights to 
organize and bargain collectively. Although the persuader campaigns are 
not themselves reimbursable under the federal contract or 
subcontract,\31\ the government is paying federal dollars for goods and 
services, sometimes in large amounts, which support such contractors' 
businesses. Additionally, by learning of the federal contractor status 
their employer enjoys, those employees would have convenient access to 
the information that would allow them to meaningfully exercise their 
organizing and collective bargaining rights such as their First 
Amendment right to choose whether to contact their representatives in 
Congress about federal appropriations underlying the contracts with 
their employers, or the employers' activities undertaken pursuant to 
such contracts, or allow the employees to work more effectively with 
advocacy groups or the media to disseminate their views as employees to 
a wider audience. See 29 U.S.C. 157; 45 U.S.C. 152, Fourth. This is 
consistent with Congress' expectations when enacting the LMRDA--that in 
the public interest, and consistent with First Amendment rights to 
speak out on these issues, citizens would have the benefit of public 
reports regarding employer conduct that falls in a ``gray area.'' S. 
Rep. No. 86-187 at 11 (1959), reprinted in 1 NLRB, LMRDA Legislative 
History, at 407 (persuader activities ``should be exposed to public 
view, for if the public has an interest in preserving the rights of 
employees then it has a concomitant obligation to insure the free 
exercise'' of those rights).
---------------------------------------------------------------------------

    \31\ See E.O. 13494 (federal agencies ``shall treat as 
unallowable the costs of any activities undertaken to persuade 
employees . . . to exercise or not to exercise, or concerning the 
manner of exercising, the right to organize and bargain collectively 
through representatives of the employees' own choosing'').
---------------------------------------------------------------------------

    Another benefit of the rule is increasing compliance by revising 
the Form LM-10 Instructions to clarify that filers must identify the 
group of employees subjected to the persuasion, surveillance or 
interference reported. This clarification will also enable better NLRB 
cross-matching by employees and the public. By clarifying that filers 
must identify the unit of employees subjected to their persuader 
activity, representation and ULP cases before the NLRB that have 
similar information documented can be matched more easily by employees, 
allowing them to know whether they were subjected to persuader 
activities more readily. This in turn would allow them to make better-
informed decisions regarding their workplace representation.
    One of Congress' stated purposes was to hold all covered employers 
to ``the highest standards of responsibility and ethical conduct[.]'' 
29 U.S.C. 401(a). The revision does so regarding filers that are 
federal contractors and is therefore consistent with Act.
    The increased transparency from the revision will benefit employees 
working on federal contracts who are subject to persuader activity, 
information gathering, or interference, by giving them a ``full 
explanation'' about their employers' reportable activities--as intended 
by Congress in enacting the LMRDA. 29 U.S.C. 433(a). Generally, the 
transparency created by the reporting requirements is designed to 
provide workers with necessary information to make informed decisions 
about the exercise of their rights to organize and bargain 
collectively. For example, with the knowledge that the source of the

[[Page 49249]]

information received is an anti-union campaign managed by an outsider, 
workers will be better able to assess the merits of the arguments 
directed at them and make an informed choice about how to exercise 
their rights.
    The requirement that a filer provide its UEI, if it has one, will 
prevent confusion and allow the public and employees to more easily 
confirm the identity of filers who are federal contractors. It will 
also ensure other, more detailed information regarding federal 
contracts is easily obtainable to employees and the general public. Two 
or more employers may have a similar name, which can create difficulty 
for workers and the public in determining whether the employer is, in 
fact, receiving federal funds. Individual employers often use multiple 
names, including trade, business, assumed or fictitious names, such as 
a DBA (``doing business as'') designation. Nevertheless, all federal 
prime contractors have their own individual UEI to seek and secure 
federal contracts which can more explicitly link an employer to a 
particular federal contract.\32\
---------------------------------------------------------------------------

    \32\ See Federal Acquisition Regulations System Sec.  4.605(b).
---------------------------------------------------------------------------

    Requiring employers to provide this federal contract identifier on 
the Form LM-10 furthers the congressional purpose of detailed employer 
reporting under the LMRDA, 29 U.S.C. 401 and 433, because members of 
the public and employees will be able to more easily distinguish 
companies with similar names or locate reports on companies that have 
changed their names. This information can also help employees and the 
general public to more expeditiously search detailed government 
contract data for these employers in the SAM system and USASpending.gov 
websites. By using the UEI, employees and the general public can be 
certain that the detailed contract information available in the SAM 
System, for example, is an award granted to the specific employer who 
has filed the Form LM-10.
    By using existing definitions and requiring reporting of 
information easily accessible to the filers, the Department has avoided 
imposing any significant burden on filers. As discussed above, the Form 
LM-10 uses a list of definitions adopted from the implementing 
regulations of E.O. 13496 (Notification of Employee Rights Under 
Federal Labor Laws) at 29 CFR 471.1. The Department expects that 
federal contractors and subcontractors are already familiar with these 
definitions because they are also, with minimal changes, the same 
definitions that already govern Federal contractors and subcontractors 
under E.O. 11246, Equal Employment Opportunity, and its implementing 
regulations. See 41 CFR 60-1.3 (definitions regarding obligations of 
federal contractors and subcontractors). Executive Order 11246 
prohibits federal contractors and federally assisted construction 
contractors and subcontractors who do over $10,000 in Government 
business in one year from discriminating in employment decisions on the 
basis of race, color, religion, sex, sexual orientation, gender 
identity or national origin. The E.O. also requires Government 
contractors to take affirmative action to ensure that equal employment 
opportunity is provided in all aspects of employment. Additionally, 
E.O. 11246 prohibits federal contractors and subcontractors from, under 
certain circumstances, taking adverse employment actions against 
applicants and employees for asking about, discussing, or sharing 
information about their pay or the pay of their co-workers. Executive 
Order 11246 is enforced by the Department's Office of Federal Contract 
Compliance Programs (OFCCP) and covers approximately one-fifth of the 
entire U.S. labor force. E.O. 11246's requirements are incorporated in 
applicable government contracts or subcontracts and includes 
nondiscrimination, notice posting,\33\ annual reporting,\34\ record 
keeping,\35\ and, for contractors that meet certain threshold 
requirements, development and maintenance of a written affirmative 
action program,\36\ among other requirements. Therefore, the Department 
expects that all filers who are federal contractors and subcontractors 
will already know their status as such under E.O. 11246 and its 
implementing regulations, see 41 CFR 60-1.3 and 60-1.5, and that most 
filers are able to easily identify the information required for Item 
12.b--their UEI and federal contracting agency or agencies.
---------------------------------------------------------------------------

    \33\ Notices to be posted, 41 CFR 60-1.43 (2022).
    \34\ Reports and other Required Information, 41 CFR 60-1.7 
(2022).
    \35\ Record Retention, 41 CFR 60-1.12 (2022).
    \36\ Affirmative Acton Programs, Sec.  60-1.40; 60-2.1 (2022).
---------------------------------------------------------------------------

    In addition, federal contractors and subcontractors are required to 
comply with E.O. 13496. Executive Order 13496 applies to federal 
contractors and subcontractors subject to the NLRA. Pursuant to E.O. 
13496, covered employers are already required to know whether they are 
federal contractors or subcontractors under the definitions used in 
this revision and, if they are, to post a notice and to inform 
employees of their rights under the NLRA, the primary law governing 
relations between unions and employers in the private sector. See 29 
CFR 471. The notice, prescribed in the regulations of the Department, 
informs employees of federal contractors and subcontractors of their 
rights under the NLRA to organize and bargain collectively with their 
employers and to engage in other protected concerted activity. The 
Department expects that most filers are subject to the NLRA.\37\
---------------------------------------------------------------------------

    \37\ Employers covered by the Railway Labor Act (RLA) are not 
covered by E.O. 13496, however, both NLRA and RLA employers are 
subject to the reporting requirements of the LMRDA. Thus, RLA 
employers may need more time to identify which employees who are the 
subject of the LM-10 report have duties relating to the performance 
of the Federal contract or subcontract. The Department expects that 
only a small number of filers will be Federal contractors or 
subcontractors subject to the RLA. The Department received no 
comments on the issues of RLA coverage or lack of NLRA coverage. The 
Department received no comments from anyone--including specifically 
from RLA-covered employers or their representatives--on this 
subject. See: https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/election/election-statistics and 
https://nmb.gov/NMB_Application/wp-content/uploads/2021/12/FY-2021-NMB-Performance-and-Accountability-Report-PAR.pdf.
---------------------------------------------------------------------------

    It will therefore take filers on average five minutes to gather and 
enter the information required by this revision. This cost is not 
significant. The change places almost no burden at all on reporting 
entities.
    In contrast, it benefits employees and the public. The information 
required by the revision, while minimal, is not otherwise easily 
available to the public. For example, subcontractor information is 
available on the GSA Electronic Subcontracting Reporting System (ESRS), 
but this information is made available only to individuals with a 
registered government or contractor log-in account. The LM-10 forms are 
offered for public viewing on the OLMS Online Public Disclosure Room 
(OPDR), which does not require a registered government or contractor 
account. Including contractor identification information on the Form 
LM-10, available on the OPDR, will allow employees and the public to 
easily identify all filers who are paid under federal contracts, 
regardless of whether they are a prime contractor or a subcontractor. 
This reporting will provide a more transparent representation of when 
federal dollars go to filers who may also make disbursements to labor 
relations consultants designed to persuade employees regarding their 
rights to organize and bargain collectively or

[[Page 49250]]

surveil employees. See Form LM-10, Items 8.b. through 8.f. This 
information cannot be readily ascertained from the SBA or GSA websites.
    The reporting of contractor status on the Form LM-10 is limited to 
identifying information and is therefore minimally duplicative of the 
more detailed reporting on the USASpending.gov website or what is 
listed on the GSA and SBA contractor lists. OLMS only requires the UEI 
number and the identification of the contracting agency, and no other 
details of the contracts provided on other government lists. The UEI 
number required by the Department is the same number reported on the 
USASpending.gov website, but the final rule does not require 
duplicative reporting of the detailed financial information on federal 
contracts provided on that website.
    The USASpending.gov website is compiled by the U.S. Department of 
the Treasury under the authority of the Federal Funding Accountability 
and Transparency Act of 2006 (FFATA), as amended by the Digital 
Accountability and Transparency Act (DATA Act), codified at 31 U.S.C. 
6101 note. Consistent with the FFATA, detailed information about 
federal awards must be made publicly available on USASpending.gov. The 
DATA Act expanded the FFATA for purposes that include linking ``federal 
contract, loan, and grant spending information to programs of federal 
agencies to enable taxpayers and policy makers to track federal 
spending more effectively.'' \38\ The website is generally adapted for 
the American public to show constituents how the federal government 
spends money every year. Federal agencies covered by the DATA Act 
report spending data to Treasury for posting on the website using 
standardized data elements, and Treasury also gathers required Federal 
agency spending data from financial and other government systems (such 
as the Federal Procurement Data System (FPDS)). Prime contractors and 
subcontractors that received federal awards directly from federal 
agencies also self-report data on their awards to the FFATA Subaward 
Reporting System (FSRS). The FSRS is a component of ESRS (mentioned 
above) but requires different reports than ESRS. FSRS requires 
reporting of executive compensation and sub-award recipient information 
by prime contractors, while ESRS requires reporting of the Individual 
Subcontract Report, Summary Subcontract Report, and Commercial Report, 
required, in effect, under the FFATA. One purpose of the DATA Act was 
to ``simplify reporting requirements for entities receiving Federal 
funds by streamlining reporting requirements . . . .'' \39\ It also 
provides that the method of collection and reporting data, in the 
context of subawards, shall minimize the burdens on Federal recipients 
and sub-recipients.\40\ Requesting contractor identification numbers is 
not overly burdensome or a duplication of financial reporting, as it 
does not require any additional information required by the FFATA and 
DATA Act, but simply requires the reporting of an identification number 
already known to a federal contractor. For example, employers filing a 
Form LM-10 are not required to include information on whether contracts 
are awarded to Small Businesses, Women-Owned Small Businesses, Veteran-
Owned Small Business, and related characteristics, which are to be 
reported to the ESRS. Reporting contractor identification numbers on 
the Form LM-10 is not unnecessarily burdensome for federal award 
recipients because the employer is already aware of their 
identification number from reporting under the FFATA.
---------------------------------------------------------------------------

    \38\ Digital Accountability and Transparency Act of 2014, Public 
Law 113-101, 128 Stat. 1146.
    \39\ Public Law 113-101, sec. 2(3).
    \40\ 31 U.S.C. 6101 note (FFATA sec. 2(d)(2)(A)); see also 31 
U.S.C. 6101 note (DATA Act sec. 5) (discussing, in general, efforts 
to avoid unnecessary duplication and burdensome reporting).
---------------------------------------------------------------------------

    As has been discussed above, the Department therefore believes that 
its revision to the Form LM-10 will also bridge important information 
gaps that have appeared in Form LM-10 reporting and is consistent with 
congressional intent to publicize a ``full explanation'' of reportable 
activities. 29 U.S.C. 433(a). The revision adds minimal but important 
information that had not been easily accessible to the public or 
employees regarding filers that engage in reportable activities, 
including whether they benefit from federal contracts.
    These benefits outweigh any minor duplication of contractor 
identifying information in government databases, especially when, as 
discussed above, some employees are not already aware that their 
employers are federal contractors. By including federal contractor 
identification on LM-10 Forms, the Department is linking federal 
contractor status with employer reporting to the Department to enable 
workers and the general public to easily evaluate federal spending 
within the context of the LMRDA. As mentioned above, the GSA and SBA 
websites provide lists of contractors within the context of those 
agencies. The SBA directory, for example, provides a listing of those 
contractors who have subcontracting plans with small businesses. 
Neither GSA nor SBA publishes reportable information under the LMRDA. 
Including basic identifying information about federal contractor status 
on LM-10 Forms allows OLMS, employees, and the general public to have 
all the relevant information in one, easily accessible reporting 
database pursuant to the LMRDA.
    Similarly, Federal contractor status as required by OLMS in this 
revision provides less detailed information than the reporting required 
by the GSA SAM.gov website and is easier for the public to access and 
use. SAM.gov is generally designed for contractors who may, among other 
tasks, access publicly available award data and federal assistance 
listings. SAM.gov includes contract data derived from the FPDS, as well 
as some additional information submitted by SAM.gov contractor account 
users. With a SAM.gov user account, one can analyze federal spending by 
federal organization, geographical area, business demographics, and 
product or service type, among other characteristics. The Department 
does not seek to duplicate this detailed contract information provided 
on SAM.gov, but rather is requesting only for Form LM-10 filers to 
report their UEI and federal agency involved. Additionally, SAM.gov 
does not focus on LMRDA-reportable activities. In contrast to SAM.gov, 
the OLMS OPDR provides Form LM-10 data to the public and does so 
without the barrier of a user account.
    Therefore, any duplication of information on the Form LM-10 poses a 
minimal burden, if any, to the reporting entity and bridges an 
important information gap by making this information more easily 
accessible to the general public. OLMS, employees, and the public 
should not have to research voluminous collections of contracting 
information and multiple websites to glean which federal contracts are 
being fulfilled by employees who are subjected to persuader, 
surveillance, or unfair labor practice activity. Employees and the 
general public should have the ability, by getting the UEI, to learn 
the extent to which the filer engages in reportable activity while 
providing its goods and services to the Federal government.
    Through its enforcement of the LMRDA, the Department ensures 
public, transparent reporting of certain activities that impact 
protected labor rights. The Department determined that

[[Page 49251]]

filers engaging in activities that may impact protected labor rights 
should disclose whether they hold government contracts. Through this 
rule, the Department has chosen to require minimal information about 
federal contractor status. While the request of federal contractor 
status on Form LM-10 may also serve the function of the DATA Act's 
interest in linking federal expenditures to federal agency programs, as 
mentioned above, this is wholly distinct from the problem of 
transparent reporting under the LMRDA.
    The revision will allow employees access to the ``full 
explanation'' and circumstances of employers' reportable activity, 
including federal contractor status, in a location and context in which 
it is more accessible and useful to them. While general information 
about federal contracts is provided via other means, including this 
information on the Form LM-10 furthers the interest of transparency as 
intended by the LMRDA. Employees, union organizers, and the general 
public who are reviewing LM forms are more accustomed to reviewing 
documents like the Form LM-10 than extensive procurement- and employer-
centric database platforms. Further, an employee or member of the 
public can more easily ascertain from the revised Form LM-10 whether 
the federal contract directly impacts a specified employment group 
because the federal contract identification is provided alongside 
information about the employer and subject group of employees. Minor 
redundancies in reportable information do not outweigh the benefits of 
having all LMRDA reportable information in one, easily accessible site 
on the Department's website.
    The LMRDA reporting regime emphasizes access to information at the 
cost of minor redundancies. By statute, the information reported on one 
LM form may well appear in another LM form. Employer reporting (under 
29 U.S.C. 433(a)) consists of the same information reported by labor 
relations consultants (under 29 U.S.C. 433(b)). In addition, employers 
report (under 29 U.S.C. 433(a)(1)) the same payments reported as 
receipts by labor unions (under 29 U.S.C. 431(b)(2)). Further, 
employers report (under 29 U.S.C. 433(a)(1)) the same payments reported 
by labor union officers and employees (under 29 U.S.C. 432). Plainly, 
therefore, the LMRDA was constructed to allow the public to more easily 
find relevant information by putting identical information in different 
reports targeted to different audiences.
    In addition, this revision is similar to other Department 
requirements that include minor redundancies and cross-references to 
information provided to other governmental agencies in more depth. For 
example, on Form LM-2, labor organizations are required to report 
whether they have any political action committees (PAC), the full name 
of each PAC, and in addition, they must list the name of any government 
agency with which the PAC has a publicly available report, and the 
relevant file number of the PAC.\41\ Despite being arguably redundant, 
these disclosures allow for a greater degree of transparency for union 
members and the public, by allowing viewers of the reports to connect 
such report with other labor related disclosures. The revision follows 
this same pattern when it takes three discrete pieces of information 
from locations where those interested in persuader reporting are not 
likely to look and brings it into the Form LM-10 where those who are 
interested will easily come across it.
---------------------------------------------------------------------------

    \41\ LM-2 Instructions, Item 11, Item 69.
---------------------------------------------------------------------------

    This easily accessible transparency promotes informed decision 
making by employees subjected to reportable persuader, surveillance, 
and interference activity. The revision does not discourage lawful 
persuader activities as employers and labor relations consultants may 
still persuade employees in conformity with the NLRA and First 
Amendment rights of the employer. The requirement that employers report 
labor relations consultant activity is also unchanged.
    The revision recognizes that both the public and the employees 
whose rights are at issue have an interest in more fully understanding 
the financial circumstances of employers who surveil employees, commit 
unfair labor practices, or persuade employees regarding their rights to 
organize or bargain collectively. See S. Rep. 187 at 10-11, LMRDA Leg. 
Hist. at 406-07. The revision will support employees and the public as 
they choose whether to engage in their own First Amendment protected 
activity.
    Knowledge of filers' federal contractor status will also enable 
members of the public to understand which federal agencies are 
contracting with employers who are engaging in persuader activity. The 
public and employees will benefit from knowing whether a specific 
federal agency is choosing to do business with an employer that is 
attempting to influence the exercise of workers' rights to choose 
whether to organize and bargain collectively. This public exposure will 
allow for an open public discussion and debate about the prevalence of 
persuader activity and the extent to which specific federal agencies 
might be indirectly supporting such activities by doing business with 
employers that engage in persuader activities.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., 
requires agencies to prepare regulatory flexibility analyses, and to 
develop alternatives wherever possible, in drafting regulations that 
will have a significant impact on a substantial number of small 
entities. The Department is certifying that this form revision will not 
have a significant economic impact on a substantial number of small 
entities. The Department had estimated an increased cost per reporting 
entity of only $8.60 per employer. A five-year average of the number of 
employer filers for the LM-10 is 580. The SBA standard average yearly 
receipts for a small business total $7.5 million.\42\ Assuming all 580 
entities are small entities of less than $7.5 million in revenue, the 
total cost of $8.60 for all 580 entities would be $4,988 for the 
resulting changes from the revision of Item 12 of the Form LM-10. 
Further, using that figure of $7.5 million, the estimated increased 
cost per reporting entity--a minimum of $8.60, as mentioned above--
represents only between 1.15 ten thousandth and 3.4 ten thousandth of a 
percent of the $7.5 million in yearly receipts for the average small 
business.\43\ Therefore, a Final Regulatory Flexibility Analysis under 
the Regulatory Flexibility Act is not required. The Department did not 
receive any comments on this analysis or conclusion. The Secretary has 
certified this conclusion to the Chief Counsel for Advocacy of the 
Small Business Administration.
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    \42\ https://www.sba.gov/offices/headquarters/ogc_and_bd/resources/4562.
    \43\ Form T-1 Rule, 85 FR 13438 (March 6, 2020). ``For this 
analysis, based on previous standards utilized in other regulatory 
analyses, the threshold for significance is 3 percent of annual 
receipts.'' Id.
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C. Paperwork Reduction Act

    This statement is prepared in accordance with the Paperwork 
Reduction Act of 1995 (PRA), 44 U.S.C. 3501.
A. Summary and Overview of the Final Form Revision
    The following is a summary of the need for and objectives of the 
form revision. A more complete discussion of various aspects of the 
revisions are found in the preamble.

[[Page 49252]]

    The Department adds a checkbox to the Form LM-10 report requiring 
certain reporting entities to indicate whether they are federal 
contractors or subcontractors. If so, the report will direct the filer 
to indicate the federal contracting agency and the contractor's Unique 
Entity Identifier (UEI), if the contractor has one. The Department will 
also clarify in the Form LM-10's instructions that a filer must 
identify the subject group of employees (e.g., the particular unit or 
division in which those employees work). This information has always 
been encompassed by Item 12 and the revised instructions now explicitly 
require it for Item 12.a.
    The LMRDA was enacted to protect the rights and interests of 
employees, labor organizations and the public generally as they relate 
to the activities of labor organizations, employers, labor relations 
consultants, and labor organization officers, employees, and 
representatives. Specifically, employers are required to file to 
disclose the following in Form LM-10 filings, pursuant to LMRDA section 
203 and subject to certain exemptions: payments and loans made to any 
union or union official; payments to any of their employees for the 
purpose of causing them to persuade other employees with respect to 
their bargaining and representation rights, unless the other employees 
are told about these payments before or at the same time they are made; 
payments for the purpose of interfering with employees in the exercise 
of their bargaining and representation rights, or obtaining information 
on employee or union activities in connection with labor disputes 
involving their company, except information obtained solely for use in 
a judicial, administrative or arbitral proceeding; and arrangements 
(and payments made under these arrangements) with a labor relations 
consultant or other person for the purpose of persuading employees with 
respect to their bargaining and representation rights, or obtaining 
information on employee or union activities in connection with labor 
disputes involving their company, except information obtained solely 
for use in a judicial, administrative, or arbitral proceeding.
    The Department, pursuant to the LMRDA, is filling in present 
information gaps occurring in Form LM-10 reporting regarding filers' 
federal contractor status. As has been stated above, the Department is 
acting pursuant to an interest in more fully understanding the full 
scope of activities undertaken by filers that engage in reportable 
activities, including whether they benefit from federal contracts.
B. Methodology of the Burden Estimate
    For purposes of the PRA, the cost burden of the revision to the 
Form LM-10 has been calculated above and is as follows. Based upon the 
existing LM form estimates, the revision to Item 12 will take no longer 
than 5 minutes to complete on average for approximately 580 filers in 
any given year, thus adding approximately 5 minutes of reporting burden 
to the existing Form LM-10 (which the current existing instructions 
estimate to take approximately 35 minutes to complete, including the 
unrevised Item 12). The Form LM-10 is not an annually mandatory form 
for employers; rather, it is only necessary in fiscal years during 
which the employer engages in identified transactions or agreements. 
Further, the revision to Item 12 does not affect all Form LM-10 filers, 
just those that answer ``Yes'' to Items 8.b.-8.f. (see footnote 2, 
above)--and only a subset of those filers (federal contractors and 
subcontractors) would need to complete all of Item 12.b. In addition, 
only one Form LM-10 report at most must be filed per fiscal year. Thus, 
the rule does not affect the total number of Form LM-10 reports that 
the Department expects to receive, nor does it affect the recordkeeping 
burden, as the Department estimates that most employers that file and 
are federal contractors or subcontractors must already retain records 
relevant to that status pursuant to E.O. 13496 (Notification of 
Employee Rights Under Federal Labor Law). See 29 CFR part 471, in 
particular subsection 471.2(d), which states that employers must post 
the notice where employees covered by the NLRA engage in activities 
relating to the performance of the contract. Instead, the rule will 
result only in an increase in reporting burden of 5 minutes per Form 
LM-10 and an overall increase of 2,900 burden minutes, or 48.3 burden 
hours, for Form LM-10 filers. The Department received just one comment 
on this analysis, which agreed with the overall assumptions and 
conclusions. Specifically, it rejected an estimate higher than five 
minutes per form, even suggesting that two additional minutes per form 
would suffice. However, the Department will retain the five-minute 
estimate, as it is more consistent with past estimates for similar 
tasks in this and other LM forms.
    The final revision will have no impact on the other 11 information 
collections approved under ICR #1245-0003. The summary of the burden 
below accounts for the burden for all ICs (reports) in ICR 1245-0003.
C. Conclusion
    As this final form revision requires a revision to an existing 
information collection, the Department is submitting, contemporaneous 
with the publication of this document, an ICR to amend the burden 
estimates under OMB Control Number 1245-0003 and revise the PRA 
clearance to address the clearance term. A copy of this ICR, with 
applicable supporting documentation, including among other items 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/PRAOMBHistory?ombControlNumber=1245-0003 (this link will be updated 
following publication of this rule) or from the Department by 
contacting OLMS at 202-693-0123 (this is not a toll-free number)/email: 
[email protected].
    Agency: Department of Labor, Office of Labor-Management Standards.
    Type of Review: Revision of a currently approved collection.
    OMB Number: 1245-0003.
    Title of Collection: Labor Organization and Auxiliary Reports.
    Forms: LM-1--Labor Organization Information Report, LM-2, LM-3, LM-
4--Labor Organization Annual Report, LM-10, Employer Report, LM-15--
Trusteeship Report, LM-15A--Report on Selection of Delegates and 
Officers, LM-16--Terminal Trusteeship Report, LM-20--Agreement and 
Activities Report, LM-21--Receipts and Disbursements Report, LM-30--
Labor Organization Officer and Employee Report, S-1--Surety Company 
Annual Report.
    Affected Public: Private Sector--Business or other for-profits and 
not-for-profit institutions.
    Estimated Number of Annual Respondents: 33,021.
    Estimated Number of Responses: 35,067.
    Frequency of Response: Varies.
    Estimated Total Annual Burden Hours: 4,644,785.
    Estimated Total Annual Other Burden Cost: $0.

D. Unfunded Mandates Reform

    This final revision will 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.

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E. Small Business Regulatory Enforcement Act of 1996

    This final revision is not a major rule as defined by section 804 
of the Small Business Regulatory Enforcement Fairness Act of 1996. This 
revision 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 United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 29 CFR Part 405

    Employers, Reporting and recordkeeping requirements

    Signed in Washington, DC.
Jeffrey R. Freund,
Director, OLMS.

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix A--Form LM-10

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[FR Doc. 2023-15510 Filed 7-27-23; 8:45 am]
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