A years-long effort to make U.S. companies disclose the use of minerals from war-torn African countries could finally go into effect this year. That is, unless business groups like the Chamber of Commerce that are opposed to the requirement can get a court to toss it out.
Three business trade groups are set to argue in the U.S. Court of Appeals for the District of Columbia Circuit Tuesday that the provision is too expensive and hard to implement. If they're successful, it could be the decisive battle in a long fight against what they argue is a well-intentioned, but poorly crafted rule.
Advocates for the requirement argue that trade in gold, tin and other minerals from the Democratic Republic of the Congo supports armed groups that terrorize, rape, and kill civilians. The provision was written into the 2010 Dodd-Frank law, most of which aimed to fix regulations after the 2008 financial crisis. To implement the law, the Securities and Exchange Commission then wrote a rule requiring U.S. public companies annually disclose their use of minerals that come from DRC and neighboring countries, including Rwanda, Central African Republic and South Sudan.
Manufacturing and business groups opposed the idea when Congress was writing the law and again when the SEC was writing the rule. When the rule was published, the trade groups -- the National Association of Manufacturers, the Chamber of Commerce, and the Business Roundtable -- challenged the rule in court. In July, the lower court ruled in favor of the SEC and now the groups are appealing that decision.
The minerals are used in everything from jewelry to aerospace equipment. They are found in light bulbs, cell phones, and tin cans. Mining groups, jewelers' associations, and trade groups for makers of cars, semiconductors, and medical devices all weighed in on the rule while the SEC was writing it.
The trade groups argue that the rule would be very expensive for U.S. companies to comply with and won't necessarily help the situation in DRC. The rule could cost as much as $4 billion for U.S. companies to ramp up initial compliance with the rule, the groups argued in court documents. The groups also argue that retailers and companies that purchase, but don't manufacture, goods should be excluded in the rule because it is too hard for them to keep track of supply chains for all of the products in their stores.
"Retailers frequently deal only with intermediaries and have limited knowledge about the supply chain used to manufacture the good," the Chamber and other groups argued in their brief to the court. Dollar General, Lowe's, hunting outfitter Cabela's, and other companies also submitted statements saying that they are already spending money to figure out whether they have to comply with the rule. Fully researching their supply chains in order to comply with the rule will be even more expensive.
Lawmakers who supported the requirement, including Sens. Dick Durbin (D-IL) and Barbara Boxer (D-Calif.), said in a "friend-of-the-court" brief that the trade groups are seeking exemptions that would "undercut Congress's clear intent and roll back the progress that is being made to end the mineral-fueled bloodshed in the DRC."
"NAM argued for these same exemptions during the statute's consideration by Congress but having failed to get these exemptions from Congress, and having failed to obtain those same desired exemptions during the rulemaking process, NAM now seeks another bite at the apple," the lawmakers said in the brief.
The SEC is doing what Congress has instructed it to do and therefore doesn't have to prove the rule will end violence in DRC, the agency argues in court documents.
Amnesty International, which has joined the case in support of the SEC, argues that increased transparency will help stop the flow of money to armed groups in DRC that is helping fuel a humanitarian crisis.
These "efforts are intended to invalidate the requirement that companies investigate and disclose information that many people think companies should already know: whether their products contain conflict minerals that finance armed groups responsible for appalling human rights abuses, including an epidemic of rape and sexual violence in the DRC," Amnesty argued in its brief to the court.
The case challenging the "conflict minerals" rule is one of a series of lawsuits trying to stop or change parts of the Dodd-Frank financial law. Trade groups have challenged rules on everything from derivatives to mutual funds. The suits have been successful in some cases and have forced regulators to move more slowly and carefully in rolling out the new rules. If the challenge is not successful, companies will have to start complying with the rule in the spring, filing their first disclosure in May.
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