News coverage today will be extensive as to the Dodd-Frank Wall Street Reform and Consumer Protection Act - the financial reform bill - that is expected to be signed by President Obama next week.
But you probably will not see much coverage as to a key "miscellaneous provision" tacked onto the end of the massive bill.
However, to many readers of this blog, this key "miscellaneous provision" is sure to cause much angst - as well it should. And no, I am not talking about the whistleblower provisions included in the financial reform bill that can reward a whistleblower who reports securities laws violations, a provision some are calling the FCPA Whistleblower Bounty Program (see here), even though the provisions are not specific to the FCPA. I will cover these provisions in a future post.
The "miscellaneous provision" is Section 1504.
It is titled "Disclosure of Payments by Resource Extraction Issuers" and it is substantively similar to S.1700, a bad bill that was introduced in the Senate in September 2009. I covered this bill, and its many problems, in this prior post.
As I noted in the prior post, bribery and corruption are bad, but that does not mean that every attempt to curtail bribery and corruption is good.
Case in point is Section 1504 of the financial reform bill.
In short, Section 1504 will substantially increase compliance costs and headaches for numerous companies that already have extensive FCPA compliance policies and procedures by further requiring disclosure of perfectly legal and legitimate payments to foreign governments. Section 1504 is akin to “swatting a fly with a bazooka" and it attempts to legislate an issue that was sensibly put to rest in the mid-1970's when Congress held extensive hearings on what would become the FCPA.
Section 1504 amends Section 13 of the Securities Exchange Act of 1934 (15 USC 78m) (“Periodical and Other Reports”) by adding a new section “Disclosure of Payments by Resource Extraction Issuers.”
Under this section, "no later than 270 days after enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the [SEC] shall issue final rules that would require:
• a “Resource Extraction Issuer” (a defined term which means an issuer that:(i) is required to file an annual report with the Commission; and (ii) engages in the commercial development of oil, natural gas, or minerals”)
• to include in its annual report
• “information relating to any payment”
• made by the issuer, “a subsidiary” of the issuer, “or any entity under the control of the issuer”
• to a “foreign government” (a defined term which means a “foreign government, a department, agency, or instrumentality of a foreign government, or a company owned by a foreign government, as determined by the Commission”) or the "Federal Government"
• for “the purpose of the commercial development of oil, natural gas, or minerals.”
Although it is possible that the final SEC rules may shed more light on the above provisions, at this point not much about Section 1504 is clear.
Therein lies the problem.
Not sure, if your company is a “Resource Extraction Issuer” because you are unclear what “commercial development of oil, natural gas, or minerals” means?
No problem, Section 1504 provides this crystal clear definition – “the term ‘commercial development of oil, natural gas, or minerals’ includes exploration, extraction, processing, export and other significant actions relating to oil, natural gas, or minerals, or the acquisition of a license for any such activity, as determined by the [SEC]. “
In other words, if you are an issuer, and you engage in “significant actions relating to oil, natural gas, or minerals” you just may have some huge, new reporting / disclosure requirements imposed on you!
Still confused? Join the club.
Is selling equipment to a core resource extraction company, which is then used to explore for oil, natural gas, or minerals a “significant action relating to oil, natural gas, or minerals?” Is selling exploration software to a core resource extraction company, which is then used to explore for oil, natural gas, or minerals a “significant action relating to oil, natural gas, or minerals?”
What is a payment?
That’s an easy one and Section 1504 provides this crystal clear definition – the term payment means:
(i) a payment that is (I) made to further commercial development of oil, natural gas, or minerals; and (II) not de minimis; and
(ii) includes taxes, royalties, fees (including license fees), production entitlements, bonuses, and other material benefits, that the Commission [...] determines are part of the commonly recognized revenue stream for the commercial development of oil, natural gas, or minerals."
Ignoring for the moment the imperfect and imprecise definition of “Resource Extraction Issuer,” it is one thing to require such issuers to disclose royalties paid to a foreign government, and if that is viewed as providing transparency and eliminating bribery and corruption (however dubious that view may be), well then perhaps Section 1504 is a good piece of legislation.
But Section 1504 seeks disclosure and reporting of much, much more and could conceivably require disclosure of every single dollar a “Resource Extraction Issuer” makes to a "foreign government, a department, agency, or instrumentality of a foreign government, or a company owned by a foreign government, as determined by the Commission" for the "purpose of the commercial development of oil, natural gas, or minerals."
Here is the real kicker though.
Section 1504 requires all payments (meeting the above definitions – if indeed you can figure out what those definitions are) to be disclosed, including perfectly legitimate and legal payments.
To those who supported Section 1504, I've got this to say - "we’ve been down this road before."
It is called the FCPA (and the various versions of the statute before it was enacted). Years of congressional hearings were had as to this very same disclosure issue and we don’t need to repeat this exercise.
Here is some background.
The FCPA as enacted in 1977 contained (and still contains) an outright prohibition on improper payments to "foreign officials" to obtain or retain business (the anti-bribery provisions) as well as books and records and internal control provisions – but not disclosure provisions.
The original versions of what became the “FCPA” (i.e. the “Foreign Payments Disclosure Act” and other similar bills) started out with disclosure provisions, including provisions requiring all U.S. companies to disclose all payments over $1,000 to any foreign agent or consultant and any and all other payments made in connection with foreign government business.
As to these disclosure provisions, many people, including, most notably Senator Proxmire (D-WI - a Congressional leader on what would become the FCPA), were concerned that the disclosure obligations were too vague to enforce and would require the disclosure of thousands of payments that were perfectly legal and legitimate.
Proxmire said during congressional hearings, “I would think they [the corporations subject to the disclosure requirements] would want some certainty. They want to know what they have to report and what they don’t have to report. They don’t want to guess and then find themselves in deep trouble because they guessed wrong.”
The final House Report (see here) on what would become the FCPA is even more clear. It states (when discussing the various disclosure provisions previously debated, but rejected):
"Most disclosure proposals would require U.S. corporations doing business abroad to report all foreign payments including perfectly legal payments such as for promotional purposes and for sales commissions. A disclosure scheme, unlike outright prohibition, would require U.S. corporations to contend not only with an additional bureaucratic overlay but also with massive paperwork requirements."
The words of the late Senator Proxmire and the sensible conclusion reflected in the House Report are equally applicable to Section 1504.
Section 1504 (while however noble its intended purpose) is akin to “swatting a fly with a bazooka.”
The FCPA already criminalizes improper payments made to the “foreign government” recipients targeted in Section 1504 to the extent those payments are made to “obtain or retain business.”
Do we really now need a law that requires “Resource Extraction Issuers” to disclose all such payments, even perfectly legitimate and legal payments?
In passing the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress apparently said yes to this question. However, with any bill of this magnitude, it is likely that certain members of Congress did not even know what they were voting for or, if they did, were willing to accept undesirable "miscellaneous provisions" to ensure overall passage. In fact, what is now Section 1504 never made it "out of committee" since being introduced in September 2009. A similar bill was also introduced in 2008, but likewise went nowhere.
That is all water under the bridge as they say, because Section 1504 is likely soon to become law.
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