(Updates with UK Department for Business, Innovation & Skills statement, corrects lobbying groups' latest demands of SEC)
WASHINGTON/LONDON (Thomson Reuters Foundation) – Royal Dutch Shell and Exxon Mobil are urging the Securities and Exchange Commission to act this year on new disclosure rules on extractives payments made by oil, gas and mining companies to governments.
Acting on proposed rules as soon as possible would help coordinate transparency worldwide, given that the United Kingdom is moving ahead quickly with plans for its own disclosure rules this year and the UK timetable “is material to U.S. consideration of this issue”, they said in a letter to SEC Chairwoman Mary Jo White on Thursday.
“We strongly believe that the public interest of achieving a coordinated and harmonized global transparency regime, which will best serve the interests of all stakeholders, depends upon it,” said Simon Henry, Royal Dutch Shell Plc’s chief financial officer, and Patrick Mulva, Exxon Mobil Corp’s controller, in the letter.
The SEC declined to comment on their call for urgent action.
The UK Department for Business, Innovation & Skills (BIS), which is holding a public consultation on options for transposing the European Union’s extractive industries directive into UK law, reaffirmed the UK's commitment to quickly implementing the EU directive.
"Last year, EU members of the G8 committed to quickly implement the extractive transparency requirements set out in the Accounting Directive," a BIS spokesperson told Thomson Reuters Foundation.
"The UK is already making good progress and has published its consultation on the implementation of Chapter 10 of the Accounting Directive," the spokesperson added.
Transparency campaigners however said that the oil companies were "delusional" if they thought that an SEC ruling would influence similar extractive transparency rules in the European Union, noting that by litigating against the SEC’s rulemaking, oil companies already had made a unified global transparency regime less likely.
The U.S. Congress in 2010 passed a law, known as Dodd-Frank Section 1504, requiring publicly traded companies to disclose how much they pay governments around the world to explore and drill for oil, gas and minerals. The legislation was intended to address corruption in the resource extraction industry by giving citizens another tool for checking how their governments are using the money from natural resource wealth.
But the rule still has not been implemented after a lawsuit filed by the American Petroleum Institute (API) and the U.S. Chamber of Commerce, with vigorous support from Shell, argued that the rules issued by the SEC would impose enormous costs on the industry and undermine its global competitiveness, and that the level of disclosure required by the SEC went beyond the intent of Congress.
The U.S. District Court last July partially agreed and sent the SEC back to the drawing board. The regulatory agency has taken no further action, effectively putting the rule on ice, even as the EU moved ahead with a similar directive.
If the SEC were to indicate the direction it was heading with its rule, the UK government could take that into account in shaping its legislation, Shell and Exxon said. This will be important because the UK is expected to be the first EU state to adopt disclosure rules, “thus setting a precedent for other EU Member States’ implementation, (which) is especially important for purposes of ‘equivalency’ between the EU and U.S. reporting regimes,” Shell and Exxon said.
“That’s delusional; the UK has no option in the payment reporting standard that it has to adopt,” Colin Tinto, a campaigner at UK-based transparency organisation Global Witness, told Thomson Reuters Foundation.
The EU Accounting and Transparency Directive lays out the extractives disclosure requirement. The UK government has some discretion to decide on penalties for failure to comply and reporting timelines but cannot change the substance of the EU law, Tinto said.
EUROPEAN LAW MORE EXTENSIVE
All 28 EU member states are required to introduce payment disclosure legislation for extractive companies by July 2015. However, the UK has committed to fast-track the implementation so that the law will be in force by 2015. The EU law orders firms to report payments at project as well as country level, beginning at a threshold of 100,000 euros ($130,000), higher than some campaigners had hoped, but far below the million-dollar level resource firms had said was practical.
In the United States, oil companies are lobbying the SEC in issuing a new rule to aggregate data, not to release details broken down by project.
The EU law goes further than the U.S. law in that it includes the logging sector and covers large unlisted EU companies, as well as listed firms. Companies such as Shell, as a European domiciled company that is listed on the London Stock Exchange and that also has U.S. traded securities, will have to comply with both the U.S. and the EU transparency laws when they come into effect.
While the letter from Shell and Exxon called for greater harmonisation of global transparency regimes, Tinto said that oil companies are “playing both sides off against each other” in an attempt to slow down the implementation of payment reporting.
“A couple of years ago there was very much a consistent standard on the table, you had the original SEC rule and you had the EU Accounting Directive which were broadly consistent,” Tinto said. “The API successfully litigated against that and managed to get the SEC rule struck down so it did actually destroy a consistent reporting standard,” he added.
The UK public consultation runs for another 10 days and the government intends to introduce regulations by the end of 2014. The SEC could issue new proposed rules at any time, but Section 1504 was not included as a priority for action by SEC Chair White for the first six months of this year.
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