Sec Reg News: Conflict Mineral Disclosure is Costly and Ineffective

08/26/2016

Sec Reg News: Conflict Mineral Disclosure is Costly and Ineffective

Buried in the gargantuan mess that was the Dodd-Frank act was a requirement which, as the SEC explains:

... directs the Commission to issue rules requiring certain companies to disclose their use of conflict minerals if those minerals are “necessary to the functionality or production of a product” manufactured by those companies. Under the Act, those minerals include tantalum, tin, gold or tungsten.

Congress enacted Section 1502 of the Act because of concerns that the exploitation and trade of conflict minerals by armed groups is helping to finance conflict in the DRC region and is contributing to an emergency humanitarian crisis.

It was foisted on companies by left-wing activists and liberal Democrat legislators, who presumably felt all warm and fuzzy as they used their various tech toys containing conflict minerals. Some of us predicted that misbegotten wretch of a rule would prove costly and ineffective. According to a new GAO study, we were right:

As a result of country-of-origin inquiries, an estimated 19 percent more companies that filed a specialized disclosure form (Form SD) with the Securities and Exchange Commission (SEC) reported that they knew or had reason to believe they knew the source of the conflict minerals in their products in 2015 than in 2014, based on a generalizable sample of filings GAO reviewed. However, after an estimated 79 percent of the companies that filed a Form SD performed due diligence, an estimated 67 percent of them reported they were unable to confirm the source of the conflict minerals in their products, and about 97 percent of them reported that they could not determine whether the conflict minerals financed or benefited armed groups in the Democratic Republic of the Congo (DRC) and adjoining countries. ...

Sourcing and chain-of-custody complexities, which companies reported to be a challenge, may increase the cost required for disclosure efforts or result in missing information. ...

OECD reported in 2016 that upstream companies and certification initiatives have struggled with the significant cost of conflict minerals traceability programs and voiced their concerns about downstream companies not sharing the burden sufficiently while benefiting from those programs.

A big part of the problem is that the federal government is basically clueless and has failed to implement requirements under the act that might have somewhat alleviated the problem:

[The Department of] Commerce is required under the act to submit, starting in January 2013, an annual report that includes, among other things, an assessment of the accuracy and recommendations for improvement of the IPSA described by the act that are filed by relevant companies with their conflict minerals report. The agency has, so far, not assessed or submitted a report on any IPSAs, despite acknowledging that 29 companies have filed IPSAs with their disclosures between 2014 and 2016. Following repeated GAO inquiries about the status of the IPSA assessments, Commerce officials have yet to estimate when they will assess the IPSAs because, as they stated, Commerce does not yet have the knowledge or skills to conduct IPSA reviews or establish best practices. Without these assessments, Congress lacks needed information on the accuracy of the IPSAs and other due diligence processes used by filing companies. Additionally, these filing companies lack information about best practices for responding to the conflict minerals rule that, according to SEC, was intended by Congress to reduce violence in the region.

This is but one piece of a much larger problem, which is the continuing efforts by left-wing activists to use disclosure rules to effect their preferred social policies. No one denies that conflict minerals are a serious humanitarian problem, but the disclosure requirements were a stupid, largely useless, costly, and ineffective means of addressing that legitimate problem. And that is usually the case with these sort of proposals, which is point worth making again and again as the tide rolls on.

Posted at 01:02 PM in Securities Regulation, Wall Street Reform | Permalink

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Buried in the gargantuan mess that was the Dodd-Frank act was a requirement which, as the SEC explains:

... directs the Commission to issue rules requiring certain companies to disclose their use of conflict minerals if those minerals are “necessary to the functionality or production of a product” manufactured by those companies. Under the Act, those minerals include tantalum, tin, gold or tungsten.

Congress enacted Section 1502 of the Act because of concerns that the exploitation and trade of conflict minerals by armed groups is helping to finance conflict in the DRC region and is contributing to an emergency humanitarian crisis.

As a result of country-of-origin inquiries, an estimated 19 percent more companies that filed a specialized disclosure form (Form SD) with the Securities and Exchange Commission (SEC) reported that they knew or had reason to believe they knew the source of the conflict minerals in their products in 2015 than in 2014, based on a generalizable sample of filings GAO reviewed. However, after an estimated 79 percent of the companies that filed a Form SD performed due diligence, an estimated 67 percent of them reported they were unable to confirm the source of the conflict minerals in their products, and about 97 percent of them reported that they could not determine whether the conflict minerals financed or benefited armed groups in the Democratic Republic of the Congo (DRC) and adjoining countries. ...

Sourcing and chain-of-custody complexities, which companies reported to be a challenge, may increase the cost required for disclosure efforts or result in missing information. ...

OECD reported in 2016 that upstream companies and certification initiatives have struggled with the significant cost of conflict minerals traceability programs and voiced their concerns about downstream companies not sharing the burden sufficiently while benefiting from those programs.

A big part of the problem is that the federal government is basically clueless and has failed to implement requirements under the act that might have somewhat alleviated the problem:

[The Department of] Commerce is required under the act to submit, starting in January 2013, an annual report that includes, among other things, an assessment of the accuracy and recommendations for improvement of the IPSA described by the act that are filed by relevant companies with their conflict minerals report. The agency has, so far, not assessed or submitted a report on any IPSAs, despite acknowledging that 29 companies have filed IPSAs with their disclosures between 2014 and 2016. Following repeated GAO inquiries about the status of the IPSA assessments, Commerce officials have yet to estimate when they will assess the IPSAs because, as they stated, Commerce does not yet have the knowledge or skills to conduct IPSA reviews or establish best practices. Without these assessments, Congress lacks needed information on the accuracy of the IPSAs and other due diligence processes used by filing companies. Additionally, these filing companies lack information about best practices for responding to the conflict minerals rule that, according to SEC, was intended by Congress to reduce violence in the region.