Conflict Minerals Alert – SEC Guidance

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During the last one week, SEC has issued certain statements and orders on the subject of compliance with conflict minerals rules. Some of which may appear contradictory. Noted below is SOAProjects’ guidance on how to interpret and apply these statements

 

The first one (April 28, 2014)  is a comment or position statement by two SEC Commissioners, which should be read only in conjunction with the official Guidance released on April 29, 2014 and the Stay Order released on May 2, 2014. It is below

 

“Joint Statement on the Conflict Minerals Decision – Commissioners Daniel M. Gallagher and Michael S. Piwowar (April 28, 2014)” (http://www.sec.gov/News/PublicStmt/Detail/PublicStmt/1370541665582#.U2e3eWdOVCo)

 

 

The second one (Release No. 72079 / May 2, 2014) is the official SEC Order which to our understanding re-affirms the guidance provided in the “Statement on the Effect of the Recent Court of Appeals Decision on the Conflict Minerals Rule” by Keith F. Higgins, Director, SEC Division of Corporation Finance on April 29, 2014 – “… Subject to the guidance below and any further action that may be taken either by the Commission or a court, the Division expects companies to file any reports required under Rule 13p-1 on or before the due date. The Form SD, and any related Conflict Minerals Report, should comply with and address those portions of Rule 13p-1 and Form SD that the Court upheld …”

 

SECURITIES EXCHANGE ACT OF 1934, Release No. 72079 / May 2, 2014 – Order Issuing Stay (http://www.sec.gov/rules/other/2014/34-72079.pdf)

 

The position as a result of the partial stay is summarized as follows by the Lexology website (http://www.lexology.com/library/detail.aspx?g=0d04b9ec-e72b-4108-9d1a-ac7ae858f398) – “For the present time, issuers will not be required to describe themselves as “DRC conflict free” or not, and unless they identify themselves as “DRC conflict free,” they can also delay an independent private sector audit (IPSA). Despite this partial stay, the reporting deadline still looms for those issuers who are subject to conflict mineral disclosure obligations. Any issuer who files reports with the SEC pursuant to Sections 13(a) or 15(d) of the Exchange Act is affected by the conflict disclosure rules under Rule 13p-1 if such issuers has “conflict minerals that are necessary to the functionality or production of a product manufactured or contracted by that [issuer] to be manufactured.” Affected issuers must file Form SD, and if applicable, a Conflict Minerals Report, by June 2, 2014 with all information other than that exempted by the partial stay and SEC guidance.”

 

For more information, please contact Kaushik Raha, Partner, SOAProjects at kraha@soaprojects.com or (650) 960-9900.