The Conflict Minerals Rule: Important Recent Developments

Reporting companies required to file Specialized Disclosure Reports on Form SD (Form SD) of the Securities and Exchange Commission (SEC) and any necessary conflict minerals reports for 2013 under the SEC’s conflict minerals rule¹ are working to meet the June 2, 2014 filing deadline for those reports. Those companies will be interested in three recent developments regarding the Rule:

• the long-awaited ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the Rule’s requirements, with one exception;²
• a statement by the Director (Director) of the SEC’s Division of Corporation Finance (CorpFin) in response to the court’s ruling that provides guidance regarding the effect of the ruling (Statement);³ and
• the issuance, prior to the court’s ruling, by the CorpFin staff (Staff) of interpretive guidance in the form of frequently asked questions on certain aspects of the Rule - in particular, the nature of the Rule’s requirement that conflict minerals reports be the subject of an independent private sector audit (IPSA).⁴

As a result of the court’s ruling, which left the Rule largely intact, and the Statement, issuers required to file reports under the Rule must continue to prepare for the filing of their Form SD and any required conflict minerals report by the June 2, 2014 deadline. Those issuers required to file a Form SD and a conflict minerals report should review the Statement and the Staff’s new interpretive guidance carefully.

This alert summarizes the court’s decision, the Statement and the Staff’s recent guidance.

Appellate Court Decision

Court upholds most of the Rule, but finds the Rule’s requirement to describe products as not “DRC conflict free” to violate the First Amendment. In the face of appellants’ challenges to a number of aspects of the Rule, the court upheld all of the Rule’s requirements other than the requirement that issuers describe in a conflict minerals report to be filed with the SEC and posted on the issuer’s publicly available website any of their products⁵ that have “not been found to be ‘DRC conflict free.’" The appellants challenged that requirement of the Rule as one that “unconstitutionally compels speech” in violation of the First Amendment.⁶ The court ultimately held that Section 13(p)(1) of the Exchange Act and Exchange Act Rule 13p-1 violate the First Amendment “to the extent the statute and [R]ule require regulated entities to report to the [SEC] and to state on their website that any of their products have ‘not been found to be ‘DRC Conflict Free.’”⁷ The court remanded the case to the U.S. District Court for the District of Columbia for further proceedings consistent with the decision.

What’s next in the case? As the court merely remanded the case to the district court for further proceedings and did not stay enforcement of the Rule, pending any additional developments issuers must proceed with the preparation of their Form SD and, if necessary, conflict minerals report and related IPSA. 

On April 29, 2014, the appellants filed with the SEC a motion to stay the Rule or, at a minimum, the filing deadline.⁸ The appellants requested action on the motion by May 1, 2014 so that they could seek appropriate relief from a court if the stay is not granted.⁹  With the SEC yet to act on the motion, on May 1, 2014, the appellants noted in a statement circulated to their members that they will ask the court to issue a full stay of the Rule until the implications of the court's ruling are clear to all parties. In addition to the possibility of the rule being stayed, the SEC or appellants could seek a rehearing of the case or a rehearing en banc. 

In that regard, the court issued an order concurrently with its decision that withheld the issuance of its mandate until seven days after the disposition of any timely filed petition for rehearing or rehearing en banc. As a result, June 5, 2014 is expected to be the earliest date on which the court’s mandate with respect to its ruling is likely to be issued.¹⁰

CorpFin Statement

The Statement provides guidance about the effect of the court’s ruling. The Statement provides guidance on a number of specific points regarding compliance with the Rule in light of the court’s ruling. The Director made clear in the Statement that, subject to the Statement’s guidance and any further action taken by the SEC or a court, the Staff expects issuers to file required Form SDs and conflict minerals reports on or before June 2, 2014 and that those reports will comply with and address those portions of the Rule that the court upheld. The Director further stated:

• an issuer not required to file a conflict minerals report should disclose its reasonable country of origin inquiry and briefly describe the inquiry it undertook in its Form SD;
• any conflict minerals report required to be filed should include a description of the due diligence the issuer undertook; and
• an issuer that has products that are within the scope of paragraphs (c)(2) and (c)(2)(i) of Item 1.01 does not have to identify those products as having not been found to be “DRC conflict free” or as being “DRC conflict undeterminable,”¹¹ but should disclose the facilities used to produce the conflict minerals contained in the products, the country or origin of those conflict minerals and the efforts of the issuer to determine the mine or location of origin.¹²

Consistent with one point in the new Staff guidance discussed below, the Director also stated that, although no issuer is required to describe its products as “DRC conflict free,” as having “not been found to be ‘DRC conflict free,’” or as “DRC conflict undeterminable,” if an issuer voluntarily elects to describe any of its products as “DRC conflict free” in its conflict minerals report, it may do so only if an IPSA of the conflict minerals report is obtained as required by the Rule.

It is important to note that the Director also stated: “[p]ending further action, an IPSA will not be required unless [an issuer] voluntarily elects to describe a product as ‘DRC conflict free’ in its Conflict Minerals Report.”

Finally, the Director noted that CorpFin will consider the need to provide additional guidance prior to the June 2, 2014 filing deadline and that issuers with questions should contact CorpFin’s Office of Rulemaking.

The Statement creates ambiguities. The Statement creates at least two ambiguities regarding how issuers are to go forward. First, in describing the content of a conflict minerals report, the Director did not mention the express requirements of paragraph (c)(2) of Item 1.01 (for any product that an issuer has determined is not “DRC conflict free”) and paragraph (c)(2)(i) of Item 1.01 (for any product that an issuer has classified as “DRC conflict undeterminable") for the conflict minerals report to include descriptions of the products of the issuer to which those paragraphs of Item 1.01 relate. As product descriptions are not required for products that are determined to be “DRC conflict free,” the inclusion of product descriptions in a conflict minerals report will make clear that the issuer has products that have not been found to be “DRC conflict free” or determined to be “DRC conflict undeterminable.” But, likewise, the inclusion of the other information the Director indicates should be included in the conflict minerals report sends the same signal to those reviewing such reports. In the absence of any guidance to the contrary, to ensure compliance with the Rule’s express requirements, it would be prudent for issuers to include descriptions of such products in their conflict minerals report, but without any designation of those products as having not been found to be “DRC conflict free” or as being “DRC conflict undeterminable.” Issuers may wish to seek further guidance on this point from CorpFin’s Office of Rulemaking.

Second, the Director’s statement regarding an IPSA not being required except when an issuer voluntarily elects to describe a product as “DRC conflict free” represents a significant departure from the Rule’s explicit IPSA requirement for the conflict minerals report of an issuer that has determined it has products that are not “DRC conflict free” or are “DRC conflict free,” but does not also have any product that is “DRC conflict undeterminable.” The Statement indicates that issuers may elect to forgo what the Rule states is a “critical component” of an issuer’s due diligence and appears to waive compliance with that part of the Rule until further action is taken. In light of the time remaining until the June 2, 2014 filing deadline, issuers relying on this portion of the Statement to not obtain an IPSA of their conflict minerals report that is otherwise required or to discontinue an IPSA that is otherwise required in progress would likely be unable to obtain an IPSA by the filing deadline should the Staff take “further action” and reverse its position on this point. As a result, issuers may wish to seek further guidance on this point from CorpFin’s Office of Rulemaking before abandoning an IPSA of their conflict minerals report in reliance on the Statement. Whatever their views as to this issue and the issue addressed in the immediately preceding paragraph, issuers should continue to prepare any required Form SD and conflict minerals report for filing with the SEC on or before June 2, 2014.

New Staff Guidance

The Rule and the Adopting Release left unanswered numerous questions about the Rule’s proper application. As a result, the Staff has issued interpretive guidance to help issuers interpret the Rule and its requirements, including the following new guidance on certain aspects of the Rule.

As the guidance was issued prior to the court’s decision described above and the Statement, issuers should keep in mind that the Rule, particularly its requirement that the conflict minerals report contain descriptions of an issuer’s products that have not been found to be “DRC conflict free” or are “DRC conflict undeterminable,” may ultimately be amended to address the court’s First Amendment holding. As a result, the Staff may need to update some of the new guidance once the litigation involving the Rule is concluded.

Auditors other than certified public accountants may conduct performance audits of conflict minerals reports. Except in the circumstance discussed below, the Rule requires issuers to obtain an IPSA of their conflict minerals report. Pursuant to the terms of the Rule, the IPSA will form a critical component of any due diligence that an issuer must perform under the Rule. 

The Staff reconfirms that a person who is not a certified public accountant, to whom the Staff also refers as “auditors,” may conduct a performance audit (but not an attestation audit) of a conflict minerals report if that auditor meets both the requirements in the general provisions of, and the performance audit-specific requirements set forth in, the U.S. Government Accountability Office’s Generally Accepted Government Auditing Standards (Yellow Book).¹³ Among those requirements is the requirement that an auditor performing a performance audit must be independent from the issuer whose conflict minerals report is to be audited.

Issuers should be cautious in choosing a person or firm to perform either an attestation audit or a performance audit of their conflict minerals report and should confirm that such person’s or firm’s audit will conform to the applicable requirements set forth in the Yellow Book and be conducted in a manner that is likely to withstand SEC scrutiny.

Issuers with one or more “DRC conflict undeterminable” products are not required to have their conflict minerals report audited during the Rule’s temporary transition period. Issuers with multiple products that they manufacture or contract to have manufactured for them that contain conflict minerals necessary to the products’ functionality or production (CM Products) may determine that one or more of those CM Products is “DRC conflict undeterminable.”¹⁴ During the transition period of calendar years 2013 and 2014 (calendar years 2013 through 2016 for smaller reporting companies) (Transition Period), an issuer “with products that are ‘DRC conflict undeterminable’ is not required to obtain an independent private sector audit of its Conflict Minerals Report regarding the conflict minerals that the [issuer] is unable to determine did not originate in the [DRC Area], or that the [issuer] is unable to determine did not directly or indirectly finance or benefit armed groups in the [DRC Area].”¹⁵ This provision could be read to indicate that, for such an issuer, an IPSA would be required of its conflict minerals report to the extent the conflict minerals report covers CM Products that are not “DRC conflict undeterminable,” even if the issuer has one or more CM Products that are “DRC conflict undeterminable.” 

Referring to a statement in the Adopting Release, however, the Staff confirms that an issuer with one or more CM Products that are “DRC conflict undeterminable” is not required to have any part of its conflict minerals report audited during the Transition Period. This guidance will significantly ease the compliance burden of issuers whose conflict minerals report will cover both CM Products that are “DRC conflict undeterminable” and CM Products that are “DRC conflict free” or that had “not been found to be ‘DRC conflict free’” and who had concluded they were required to have an IPSA of the part of their conflict minerals reports for a year in the Transition Period that addresses CM Products that are not “DRC conflict undeterminable,” but who have not already had the IPSA performed. It remains to be seen if the shareholder activists who were the proponents of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which mandated the adoption of the Rule, will challenge this aspect of the Staff’s guidance.

If an issuer does not have its conflict minerals report audited, it may not describe any CM Products in its conflict minerals report as being “DRC conflict free.”  The Staff has exacted a price for allowing issuers with both CM Products determined to be “DRC conflict undeterminable” and CM Products determined to be “DRC conflict free” or having not been found to be “DRC conflict free” to forgo an IPSA of their conflict minerals report. If such an issuer chooses not to have an IPSA performed, the issuer may not describe any of its CM Products in its conflict minerals report as being “DRC conflict free.” This would be so even if, as a result of the due diligence conducted by the issuer, the issuer conclusively determines that all of the conflict minerals contained in one or more of its CM Products that are not "DRC conflict undeterminable" did not directly or indirectly finance or benefit armed groups in the DRC Area.

As justification for this position, the SEC indicates that, because the Rule provides that an IPSA is a critical part of the issuer’s due diligence, the “DRC conflict free” determination could not be made as to any CM Product reported in a conflict minerals report that has not been the subject of an IPSA. Consequently, even if an issuer follows the OECD Due Diligence Guidelines for Responsible Supply Chains for Minerals from Conflict-Affected and High-Risk Areas (OECD Guidance)¹⁶ to the letter in designing and executing its due diligence and has determined (even beyond any doubt) that a CM Product is “DRC conflict free,” it still may not describe that CM Product as “DRC conflict free” in its conflict minerals report if that report is not subjected to an IPSA. 

The Staff takes this position in spite of the fact that, as will be discussed below, an IPSA does not audit the accuracy or completeness of the due diligence actually conducted or the accuracy of any factual determinations an issuer makes based on its due diligence. The Staff’s position in this regard is likely to extend to a statement in a conflict minerals report that certain CM Products covered by the report meet the criteria for being “DRC conflict free” without labeling those CM Products as “DRC conflict free.”

During the Transition Period, a CM Product containing multiple conflict minerals may not be described as “DRC conflict free” if an issuer is unable to determine, as to any of the conflict minerals contained in that CM Product, that such conflict mineral did not originate in the DRC Area or did not finance or benefit an armed group in the DRC Area. The Rule and the Adopting Release did not specifically contemplate situations in which a CM Product might contain multiple conflict minerals or different quantities of a single conflict mineral originating from different sources. To address one aspect of this situation, the Staff indicates that if a CM Product, otherwise qualifying as “DRC conflict free,” contains any conflict mineral that the issuer is unable to determine did not originate in the DRC Area or did not directly or indirectly finance or benefit armed groups in the DRC Area, the issuer may not describe the CM product as “DRC conflict free.” Obviously, this principle will apply as to CM Products covered by conflict minerals reports for a reporting year during and after the Transition Period.

IPSAs do not include an audit of the completeness or reasonableness of an issuer’s due diligence. To clarify and resolve questions about the scope of an IPSA, the Staff states that an IPSA does not include an audit of the completeness or the reasonableness of the due diligence performed by an issuer, including as to the CM Products described in the conflict minerals report as “DRC conflict free” or those described as having not been found to be “DRC conflict free.” Instead, the IPSA’s sole objective is to express an opinion or conclusion as to whether: (1) the design of the issuer’s due diligence measures as set forth in the conflict minerals report being audited for the year covered by the report are in conformity with, in all material respects, the criteria set forth in the nationally or internationally recognized due diligence framework used by the issuer, which currently is only the OECD Guidance; and (2) whether the description of the due diligence measures the issuer performed as described in the conflict minerals report for the year covered by the report are consistent with the due diligence processes the issuer undertook. The IPSA is not required to cover any other matter. 

As a result, the auditor performing the IPSA is not required to, and should not, audit the accuracy of the issuer’s determinations as to the sources of the conflict minerals contained in the CM Products covered by the conflict minerals report, including whether the conflict minerals in the CM Products came from recycled or scrap sources, or whether the CM Products are “DRC conflict free” or “DRC conflict undeterminable.” If the design of due diligence measures conforms, in all material respects, to the OECD Guidance and the description of the issuer’s due diligence in the conflict minerals report is consistent with the due diligence measures undertaken by the issuer, the auditor should provide a clean audit opinion or conclusion as to the conflict minerals report.

Where an issuer’s reasonable country of origin inquiries and due diligence measures overlap in determining where a conflict mineral in a CM Product originated, an IPSA will not cover the reasonable country of origin inquiries. An issuer’s reasonable country of origin inquiry is the second compliance step under the Rule and is performed to attempt to identify the location of origin of conflict minerals in CM Products prior to the issuer being required to perform the more rigorous due diligence process. As a practical matter, these inquiries may involve investigative measures that are very similar, if not identical, to a part of the due diligence measures that can be performed for that purpose. However, an IPSA of an issuer’s conflict minerals report does not include within its scope, a review of the design, nature or results of the issuer’s reasonable country of origin inquiries. 

The Staff views reasonable country of origin inquiries, which are not required to conform to any particular criteria such as the OECD Guidance and need not be described in a conflict minerals report, as being distinct and a separate step from the due diligence process. As a result, the auditor will not be required to audit, and should not audit, an issuer’s reasonable country of origin inquiries as part of the IPSA of a conflict minerals report.

If a CM Product contains both conflict minerals from recycled or scrap sources and conflict minerals that cause the issuer to have to file a conflict minerals report, any required disclosures about the conflict minerals from recycled or scrap sources will be made in the issuer’s Form SD and only the other conflict minerals in the CM Product must be addressed in the conflict minerals report. The principle that different conflict minerals and conflict minerals from different sources may be considered and treated separately for purposes of the Rule is once again followed in the guidance. Although an issuer’s Form SD must address the conflict minerals from recycled or scrap sources in a CM Product, the conflict minerals report need only address those conflict minerals that originated in the DRC Area and are not from recycled or scrap sources or that the issuer has reason to believe may have originated in the DRC Area and may not be from recycled or scrap sources.

The required due diligence with respect to the conflict minerals in CM Products to be covered by a conflict minerals report for a particular calendar year may be performed by an issuer before, during or after such calendar year. The due diligence measures undertaken with respect to conflict minerals in an issuer’s CM Products must be undertaken with respect to CM Products manufactured in the calendar year to which the conflict minerals report relates. The Staff confirms that such due diligence may begin before the calendar year and extend beyond the calendar year and that due diligence need not continue constantly throughout the calendar year in which the CM Products covered by a conflict minerals report are manufactured.

Issuers should not conclude from this guidance that the Staff condones an issuer doing all necessary due diligence with respect to its CM Products manufactured in a calendar year after the close of the year. The guidance does not state that is the case and suggests that the Staff expects that some due diligence may need to be performed during the calendar year. As a result, issuers are best advised not to conduct all required due diligence after the end of the calendar year, both as a matter of compliance with the Rule and as a matter of ensuring that their due diligence can be conducted and their conflict minerals report can be prepared and audited by the filing deadline each year.

Conflict minerals reports need not describe the design of the issuer’s due diligence measures. The Rule requires a conflict minerals report to describe the due diligence measures that the issuer undertook pursuant to the Rule, but not the design of those measures. However, the IPSA must address whether the design is in conformity, in all material respects, with the nationally or internationally recognized framework for due diligence used by the issuer. 

The Staff warns issuers that although the Rule does not require that an issuer provide a full description of the design of its due diligence measures in its conflict minerals report, the description of the due diligence measures undertaken must be in sufficient detail to allow the auditor of the conflict minerals report to form an opinion or conclusion about whether such description is consistent with the due diligence process actually performed by the issuer. In this regard, when preparing its conflict minerals report, an issuer should consider what level of detail in its description of its due diligence processes will satisfy the auditor conducting the IPSA and will enable the auditor to provide a clean audit opinion or conclusion as to the conflict minerals report.

Unanswered questions remain. The Staff’s additional guidance is welcome and may prove to reduce the burden and expense of compliance with the Rule for some issuers. Nevertheless, the Staff still has not addressed important questions regarding the applicability of the Rule, especially in light of the uncertainty caused by the court’s ruling and the Statement. For example, the Staff has yet to provide adequate guidance as to what it will consider to be a reasonable country of origin inquiry. As the Staff reviews the first Form SDs and conflict minerals reports filed this year, it may find that it would have better served the issuers it regulates and those persons with an interest in the conflict minerals disclosures if the Staff had given even more extensive guidance regarding the Rule.

Issuers with questions about the applicability of the Rule should watch for any Staff comment letters on the first set of conflict mineral disclosures and for Staff inquiries of any issuers who do not file Form SDs but who the Staff identifies as appearing to manufacture products that may contain conflict minerals. Those comment letters and inquiries, which likely won’t be publicly available until late in the third quarter or in the fourth quarter of this year, may provide additional insight into the Staff’s views regarding compliance with the Rule.

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1. The conflict minerals rule is embodied in Rule 13p-1 under the Securities Exchange Act of 1934, as amended (Exchange Act), and Item 1.01 of Form SD (Item 1.01, and together with Rule 13p-1, the Rule), which together implement Section 13(p) of the Exchange Act.  

2.  See Nat’l Assoc. of Mfrs.  v. SEC, No. 13-5252, 2014 WL 1408274  (D.C. Cir. Apr. 14, 2014). 

3. See Keith F. Higgins, Director, SEC Div. of Corp. Fin., Statement on the Effect of the Recent Court of Appeals Decision on the Conflict Minerals Rule (Apr. 29, 2014), available at www.sec.gov/News/PublicStmt/Detail/PublicStmt/1370541681994.

4. See SEC Div. of Corp. Fin., Dodd-Frank Wall Street Reform and Consumer Protection Act Frequently Asked Questions - Conflict Minerals (May 30, 2013, as updated on April 7, 2014).  The Staff first issued guidance in the form of frequently asked questions on May 30, 2013 to answer interpretive questions and address compliance mechanics. For a discussion of the Staff’s prior guidance, please see our client alert dated June 19, 2013, SEC Provides Guidance on Dodd-Frank Conflict Minerals Rule.

5. The products addressed by the Rule and the court are ones that an issuer manufactures or contracts to have manufactured for it and that contain a quantity of one or more conflict minerals necessary to the production or functionality of that product.

6.  See Nat’l Assoc. of Mfrs. at *8.

7.  Id. at *11.  In footnote 14, the court noted that it only holds the statute to have violated the First Amendment to the extent it imposes the “not been found to be ‘DRC conflict free’” description requirement. The court further noted that if that description requirement is solely a result of the Rule, then the court’s holding does not affect the statute. Id. at *11 n.14. 

8.  See Motion for Stay by Nat’l Assoc. of Mfrs., U.S. Chamber of Commerce and Bus. Roundtable (Apr. 29, 2014)

9.  On April 28, 2014, two SEC Commissioners issued a joint statement indicating that they believe that the Rule should be stayed in its entirety until the litigation involving the Rule is concluded. See SEC Commissioners Daniel M. Gallagher and Michael S. Piwowar, Joint Statement on the Conflict Minerals Decision (Apr. 28, 2014), available at http://www.sec.gov/News/PublicStmt/Detail/PublicStmt/1370541665582.

10. Order, Nat’l Assoc. of Mfrs.  v. SEC, No. 13-5252, 2014 WL 1408274  (D.C. Cir. Apr. 14, 2014).

11.  Issuers searching in Item 1.01 for an express requirement that they describe any of their products in a conflict minerals report as having “not been found to be ‘DRC conflict free’" will search in vain. Item 1.01’s requirements do not contain a specific requirement that products be described or labeled in a conflict minerals report as products having “not been found to be ‘DRC conflict free.’"  Rather, paragraph (c)(2) of Item 1.01 only requires that issuers “must provide a description of those products” that have not been found to be “DRC conflict free” and certain other disclosures regarding such products in their conflict minerals report. In the SEC’s adopting release relating to the Rule (Adopting Release), the SEC states that: “[t]he issuer would identify such products by describing them in the Conflict Mineral Report as not ‘DRC conflict free,’” obviously viewing that requirement as being implicit in Item 1.01’s provisions. See Conflict Minerals, Exchange Act Release No. 34-67716 (Aug. 22, 2012), 77 Fed. Reg. 56274, 56277 (Sep. 12, 2012) (codified in 17 C.F.R. Pts. 240 and 249b), available at http://www.gpo.gov/fdsys/pkg/FR-2012-09-12/pdf/2012-21153.pdf. A description of, and other disclosures regarding, products determined to be “DRC conflict free” are not required to be included in a conflict minerals report. As a result, even without products being labeled as having not been found to be “DRC conflict free,” the description of products in a conflict minerals report that, during the transition period described below, are not identified as “DRC conflict undeterminable” will signal the fact that those products have not been found to be “DRC conflict free.”

12. Issuers considering this guidance when preparing their conflict minerals report should keep in mind that paragraphs (c)(2) and (c)(2)(i) of Item 1.01 specifically require the disclosure of an issuer’s “efforts to determine the mine or location of origin [of the necessary conflict minerals in the products to which such disclosure relates] with the greatest possible specificity.” (emphasis added).

13. The Yellow Book sets forth the requirements for federal government audits. A copy of the current version of the Yellow Book may be viewed at http://www.gao.gov/products/GAO-12-331G.

14. A CM Product is “DRC conflict undeterminable” if the issuer cannot determine if the conflict minerals in that CM Product (1) did not originate in the Democratic Republic of the Congo (DRC) or one of the other countries sharing an internationally recognized border with the DRC (those countries, together  with the DRC, the DRC Area), (2) did come from recycled or scrap sources or (3) if those conflict minerals came from the DRC Area and not from recycled or scrap source, did not directly or indirectly finance or benefit armed groups in the DRC Area.

15. Item 1.01(c)(1)(iv) of Form SD.

16.  The OECD Guidance is currently the only nationally or internationally recognized due diligence framework that the SEC accepts as an appropriate basis for the design of an issuer’s due diligence measures under the Rule.