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SEC defends payment disclosure rule
January 3, 2013

The rule implemented by the U.S. Securities and Exchange Commission (SEC) that requires oil, mining and gas companies to disclose payments made to foreign governments has been challenged by four business groups.

The SEC responded to a lawsuit filed in October and defended the rule, which was mandated by the 2010 Dodd-Frank financial regulation overhaul, saying it would not “second-guess” decisions made by Congress, Reuters reported.

Groups including the U.S. Chamber of Commerce and the American Petroleum Institute have argued the rule went beyond the intent of Congress and puts U.S. firms at a competitive disadvantage.

In a brief filed in a Washington federal appeals court, the SEC said the legislative history of the law made clear the provision was crafted by Congress to address the “resource curse,” or the phenomenon of resource riches leading to corruption in poor countries.

“Petitioners, ultimately unhappy with Congress’s determination to compel the public disclosure of the payment information, now advance a series of meritless challenges,” the SEC said.

The lawsuit is one of a string of legal challenges against regulators still struggling to finalize dozens of rules included in Dodd-Frank and other recent financial regulatory reforms.

The SEC and the Commodity Futures Trading Commission (CFTC) have lost a handful of such challenges, often over whether the agencies adequately considered a rule’s costs and benefits.

In December, a federal judge upheld a new CFTC rule governing certain mutual funds, but that ruling is currently on appeal.

The SEC’s transparency rule at issue was designed to build on voluntary initiatives by mandating disclosure of payments to foreign governments made by companies in so-called “extractive industries” whose shares trade on U.S. exchanges.

Though controversial, the law’s congressional sponsors said it would help citizens hold resource-rich governments accountable for their management of resource revenues.

The business groups that brought the lawsuit had asked the SEC to confidentially collect the information and release it only on an aggregate, by-country basis, to protect individual companies.

In their lawsuit, they said such a model was consistent with the statute. The SEC said the law shows Congress intended for public disclosure of each company’s individual information.

The SEC also responded to the cost-benefit argument, and said it was dependent on data provided by the industry to assess the costs. It said it could not quantify the rule’s potential benefits of enhanced governmental accountability.

The groups had also argued that the rule violated the First Amendment, which the SEC described as an “eleventh-hour shift in strategy” because the groups’ other arguments lacked merit.

That strategy ignores that regulated companies are subject to many other public reporting requirements, and such a theory could have “potentially devastating implications” for the other programs, the SEC said.

The agency asked the court to schedule a hearing in the case after mid-February due to scheduling conflicts.

 

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