Public companies have begun filing their first set of reports on so-called “conflict minerals” with the Securities and Exchange Commission to meet a deadline Monday, but advocacy groups are finding the reports are not providing much information so far.
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 included a provision requiring public companies to file reports on the use of materials such as tin, gold, tungsten and tantalum to help determine whether their mineral purchases might inadvertently be funding armed groups in the Democratic Republic of the Congo and surrounding countries in war-torn Africa.
Companies must disclose in reports to the SEC their efforts to conduct supply chain checks and due diligence to meet internationally recognized standards set by the Organization for Economic Cooperation and Development.
Business groups such as the National Association of Manufacturers, the U.S. Chamber of Commerce and the Business Roundtable have tried to overturn the SEC requirements and challenged them in court. Earlier this year, they won a victory on free speech grounds, although they were unable to persuade the courts to delay the rule beyond its June 2 deadline (see Appeals Court Refuses to Stay Conflict Minerals Rule).
So far, many of the early filings submitted to the SEC ahead of the deadline contained little useful information, according to some observers. At the close of business on Friday, May 30, there were approximately 255 Form SD's filed by public companies, or “in-scope issuers,” with the SEC, according to the technology company Source Intelligence, but 95 percent of these filing companies were unable to determine the conflict status of the tin, tantalum, tungsten, and gold sourced from the Democratic Republic of Congo in their supply chains. Seventy-five percent of them filed “No Determination” about the origin of their conflict minerals and another 20 percent filed as “DRC Conflict Undeterminable.” Only 5 percent of the SEC issuers reported a determination as to the conflict status of the minerals sourced in the DRC.
The results as of last week indicated the challenges that companies are facing in engaging their suppliers as they try to trace such materials through their supply chains during the first year of conflict mineral disclosures. The conflict mineral rule directly affects 6,000 public companies and an estimated 280,000 suppliers, according to Source Intelligence.
The advocacy group Global Witness expressed disappointment with the reports it has reviewed so far. On Monday it noted that more than 620 companies have submitted filings with the SEC.
“Some firms have made strong submissions containing detailed information about the steps they have taken to source minerals responsibly and demonstrating that oversight of supply chains is possible,” said Sophia Pickles, a campaigner for Global Witness, in a statement Monday. “Sadly, these companies are in the minority. The lack of information in most of the submissions we have seen suggests companies have not taken the necessary steps to find out what is really going on along their supply chains—so we can’t tell if they are sourcing responsibly or not.”
The group noted that some companies have published minimal, if any, information on their efforts to determine which countries the minerals in their products are sourced from. Many companies have not explained how they assess their suppliers’ due diligence practices. Many companies have not shown the steps they have taken to identify and mitigate the risks in their supply chain. As of Friday, only one company, Intel, had obtained an audit of its conflict minerals report.
Global Witness said companies should provide comprehensive, clear and detailed information about their supply chain due diligence, including an audit of the due diligence that companies have carried out. It noted that independent audits are a critical part of risk-based due diligence and will help ensure that the reports submitted to the U.S. regulator are accurate and credible.
“Companies have had since 2010—when Congress passed Section 1502—to do the work and figure out where the metals that they use come from,” said Pickles. “The companies that have stepped up to the mark have helped to catalyze positive changes along mineral supply chains, including in DRC. A question mark now hangs over those companies that have failed to clearly explain what they are doing to avoid funding conflict or human rights abuses.”
In conjunction with Monday’s deadline for the reports, the Responsible Sourcing Network, a coalition of NGOs and investors, released a list of criteria to help evaluate the reports. Expectations Shortlist: Company Conflict Mineral Reporting and Activities features information that stakeholders expect to see in the SEC filings, on the issuers’ Web sites or in sustainability reports.
Last year, together with the Enough Project, RSN released a white paper, Expectations for Companies’ Conflict Minerals Reporting. The new Expectations Shortlist offers more guidance to companies in an effort to improve the scope and quality of information that will be disclosed in future reports.
“As reports become available to review, we wanted to publicly share the criteria numerous groups agree are the key points,” said RSN director Patricia Jurewicz, lead author of Expectations Shortlist. “Applauding companies for reporting on the OECD’s due diligence framework, participating in the Conflict-Free Sourcing Initiative, and sourcing conflict-free from the GLR will encourage companies to take action that will make a difference in-region. Stakeholders will look poorly upon issuers that postpone robust reporting or file a report that simply ticks a box.”
RSN noted that although companies subject to the disclosure rules are not required to designate whether or not their products are “conflict-free,” companies must perform due diligence on their supply chains and take proactive actions to address conflict minerals from the DRC. Investors and other stakeholder groups need such information to evaluate companies’ operational and reputational risks and to make sound investment decisions.
“It’s an historic day in the fight against corporate abuses in supply chains,” said Sasha Lezhnev, an analyst with the Enough Project. “For the first time ever, electronics and other companies are disclosing whether or not rape and mass killing are part of their supply chains. But the conflict in Congo is not over, and we still need to see more action from jewelers and the U.S. government to fight against conflict gold.”
“For years, electronics, jewelry and other companies turned a blind eye to what was inside their supply chains. With today’s filings to the SEC, they can no longer do that,” said Enough Project co-founder John Prendergast. “From now on, consumers can look under the hood and judge for themselves whether the maker of their smart phone or necklace is getting rid of blood minerals from Congo and make an informed choice when they go shopping.”
They found that the projected costs of complying with the rule have been overstated. “As companies file, we are finding that their actual costs of implementing Dodd-Frank are much lower than what lobbyists estimated,” said Lezhnev. “For a $1 billion company, the real cost of filing is approximately $150,000, according to industry experts Claigan Environmental. This is in large part due to the fact that most companies can use the industry-wide systems set up by Intel, Motorola Solutions and industry leaders, particularly the Conflict-Free Smelter Program.”