Tag Archives: conflict minerals

European Parliament approves conflict minerals rules for the EU

by Cydney Posner

Last week, the  European Parliament approved, by a vote of 558 to 17 with 45 abstentions, new rules on conflict minerals, 3TG—tin, tungsten, tantalum and gold.  Proceeds from the sale of conflict minerals, which are used in the production of products such as mobile phones, cars and jewelry, are sometimes used to finance armed conflict in high-risk areas. The rules are designed to prevent the sale of conflict minerals from continuing to fuel this violence.  According to the press release, the rules impose supply chain due diligence requirements based on the OECD Guidance on companies importing 3TG into the EU. The rules are expected to cover up to 95% of imports as of January 1, 2021.  Following the European Parliament vote, the EU conflict minerals regulation will be finalized when formally approved by EU member countries and published in the EU Official Journal and will go into effect in 2021.

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Just as the U.S. seeks to roll back regulations, the European Parliament adopts new corporate governance rules

by Cydney Posner

Just when the U.S. is looking at how to roll back its regulations on corporations (among others) (see, e.g., this PubCo postthis PubCo post and this PubCo post), the rest of the world seems to be headed in the opposite direction.  On Tuesday, the EU Parliament approved a Shareholder Rights Directive, which introduces, among other things, the concept of binding say-on-pay votes for companies listed in EU markets (over 8,000 of them). The Directive also includes some interesting measures intended to impede short-termism.  According to the press release fact sheet issued by the European Commission, the Directive must still be adopted by the European Council (expected shortly) and, assuming adoption, will become effective two years thereafter. Continue reading

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Say farewell to the conflict minerals case, Nat’l Ass’n of Mfrs. v. SEC

by Cydney Posner

The parties to the conflict minerals case have filed in the D.C. District Court a “Joint Status Report,” which requests that the Court enter a final judgment in accordance with the decision of the Court of Appeals.  As a result, it will be case closed for National Association of Manufacturers v. SEC, which decided that the requirement in the conflict minerals rule to disclose whether companies’ products were “not found to be DRC conflict free” violated companies’ First Amendment rights.    Continue reading

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For the avoidance of doubt, Acting Corp Fin Director confirms conflict minerals and pay-ratio disclosure rules still in effect

Cydney Posner

As reported by the WSJ, at the SEC Speaks conference today, to avoid any doubt on the matter, Acting Corp Fin Director Shelley Parratt reminded companies that, notwithstanding the two requests for public comment issued by Acting SEC Chair Michael Piwowar and all of the Executive Orders aimed at deregulation, the conflict minerals and pay-ratio disclosure rules continue in effect (until of course they don’t). The staff is, however, reviewing comments on these rules as they are received. Continue reading

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Will the SEC be instructed to waive any or all of the conflict minerals requirements on the basis of national security interests? (Updated)

by Cydney Posner

Remember all the way back to last week when Acting SEC Chair Michael Piwowar issued two statements on the conflict minerals rules?  (See this PubCo post.) Remember too that the first statement directed the staff to revisit the 2014 guidance from the director of corp fin regarding conflict minerals, and that, in the additional statement, he talked about what he had learned in his recent trip to Africa? In that additional statement, he concluded that the rule was “misguided,” had led to “a de facto boycott of minerals from portions of Africa” and was putting legitimate mining operators out of business because of the onerous costs of compliance with the rules. Now here’s critical sentence: “Moreover, the withdrawal from the region may undermine U.S. national security interests by creating a vacuum filled by those with less benign interests.” Apparently, that sentence may well have sent a signal to the White House.

According to an exclusive report from Reuters, the President “is planning to issue an executive order targeting [the conflict minerals disclosure rule],” and while Reuters did not know the precise contents or timing of that order— including how broadly it might apply and whether or not it could implicate reporting due in May 2017— the suggestion is that it would be based on the national security waiver provision in Dodd-Frank.  That provision (Exchange Act Section 13(p)(3)) requires the SEC to revise or temporarily waive the basic requirements of the conflict minerals provisions “if the President transmits to the Commission a determination that—(A) such revision or waiver is in the national security interest of the United States and the President includes the reasons therefor….”  While the exemption would be limited by statute to two years, the conflict minerals provision in Dodd-Frank is one that was identified for repeal in the original Financial CHOICE Act and could be jettisoned under the Financial Choice Act 2.0 — if it passes through Congress unscathed that is. (See this PubCo post.)

As of now, conflict minerals filings are still due on May 31 and, until the timing and precise details of the reported executive order become known, it is still too soon— and too uncertain at this point— to say “pencils down” on conflict minerals disclosure. Nevertheless, companies that are subject to the conflict minerals requirements should stay tuned.

Update of February 9: Thecorporatecounsel.net blog has posted what purports to be  a draft of the executive order.  Is the draft real or is it fake news? That remains an open question for now. (He also links to an interesting piece in Mother Jones.)

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What to make of the latest Executive Order on financial regulation?

by Cydney Posner

As reported all over the place, a new Executive Order has been signed directing the Secretary of the Treasury to consult with the heads of the member agencies of the Financial Stability Oversight Council (which includes the SEC) and report to the President within 120 days identifying “any laws, treaties, regulations, guidance, reporting and recordkeeping requirements, and other Government policies that inhibit Federal regulation of the United States financial system in a manner consistent with the Core Principles.” The “Core Principles” relate to topics such as individual financial empowerment, corporate competitiveness, fostering economic growth through rigorous regulatory impact analysis, making “regulation efficient, effective, and appropriately tailored,” restoring “public accountability within Federal financial regulatory agencies” and rationalizing “the Federal financial regulatory framework.” The Order doesn’t effect any regulatory change by itself; rather, it provides impetus to financial regulators to rethink their regulatory regimes in light of these Principles — not a signal to start their engines. Continue reading

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Acting SEC Chair to revisit 2014 guidance on conflict minerals rules

by Cydney Posner

Yesterday, Acting SEC Chair Michael Piwowar issued two statements — available here and here — on the conflict minerals rules, neither of which is definitive, but which together make clear that further guidance on the rules is in the offing and that it may well involve some type of relaxation of the requirements, if not relief from the application of the rules altogether.  What’s much less clear is whether any of that guidance will be timely for or even applicable to filings regarding the 2016 reporting period that are due on May 31, 2017.  With companies in limbo as a result, the hope is that some clarification will be forthcoming. Continue reading

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