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SEC issues guidance for conflict minerals reporting

The SEC said Tuesday it expects issuers to file Form SD and any related Conflict Minerals Report by the May 31 deadline in accordance with the portion of the disclosure rule upheld by the D.C. circuit federal appeals court earlier this month.

Keith F. Higgins, Director of the Division of Corporation Finance, said in the guidance that companies that are not required to file a Conflict Minerals Report should disclose their reasonable country of origin inquiry.

Companies required to file a Conflict Minerals Report should include a description of the due diligence they undertook.

If the company has products that fall within the “DRC conflict undeterminable” or “not found to be ‘DRC conflict free” categories, it should disclose the facilities used to produce the minerals for the products, the country of origin of the minerals, and the efforts to determine the mine or place of origin.

Consistent with the April 14 decision of the D.C. federal appeals court striking down part of the disclosure rule in National Association of Manufacturers, et al. v. SEC, et al., the SEC said:

No company is required to describe its products as “DRC conflict free,” having “not been found to be ‘DRC conflict free,'” or “DRC conflict undeterminable.” If a company voluntarily elects to describe any of its products as “DRC conflict free” in its Conflict Minerals Report, it would be permitted to do so provided it had obtained an independent private sector audit (IPSA) as required by the rule. Pending further action, an IPSA will not be required unless a company voluntarily elects to describe a product as “DRC conflict free” in its Conflict Minerals Report.

The first conflict mineral disclosures are due to be filed May 31. Because that day falls on a weekend, the actual filing deadling is June 2.

On Monday this week, two of the five SEC commissioners said all conflict mineral disclosure should be stayed until the outcome of the pending court challenge. They also said the court should strike down the entire conflict mineral rule based on First Amendment concerns, among others. The full commission hasn’t adopted their position.

The SEC said Tuesday reporting companies can ask questions by calling (202) 551-3430.

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Julie DiMauro is the executive editor of the FCPA Blog and can be reached here.

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