SEC adopts new rules, wants energy companies to disclose payments to governments

The U.S. government’s agency Securities and Exchange Commission (SEC) on Monday adopted rules to require resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas or minerals.

According to SEC, the rules, mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, are intended to further the statutory objective to advance U.S. foreign policy interests by promoting greater transparency about payments related to resource extraction.

The final rules require an issuer to disclose payments made to the U.S. federal government or a foreign government if the issuer engages in the commercial development of oil, natural gas, or minerals and is required to file annual reports with the Commission under the Securities Exchange Act, SEC said. The issuer must also disclose payments made by a subsidiary or entity controlled by the issuer, the agency added.

“I am pleased that the Commission has completed these final rules, which will provide enhanced transparency to further the statutory goal,” said SEC Chair Mary Jo White.

SEC stated that, under the final rules, resource extraction issuers must disclose payments that are: made to further the commercial development of oil, natural gas, or minerals; “not de minimis”; and within the types of payments specified in the rules. The final rules define commercial development of oil, natural gas, or minerals as exploration, extraction, processing, and export, or the acquisition of a license for any such activity.

The rules define “not de minimis” as any payment, whether a single payment or a series of related payments, which equals or exceeds $100,000 during the same fiscal year. Payments that must be disclosed are: taxes; royalties; fees (including license fees); production entitlements; bonuses; dividends; payments for infrastructure improvements; and, if required by law or contract, community and social responsibility payments. The disclosure must be made at the project level, similar to the approach adopted in the European Union and Canada.

Exemptions

The agency also said that the final rules include two targeted exemptions to the reporting obligations. One exemption provides that a resource extraction issuer that has acquired a company not previously subject to the final rules will not be required to report payment information for the acquired company until the filing of a Form SD for the first fiscal year following the acquisition. Another exemption provides a one-year delay in reporting payments related to exploratory activities. The Commission also could exercise its existing Exchange Act authority to provide exemptive relief from the requirements of the rules on a case-by-case basis.

The required disclosure will be filed publicly with the Commission annually on Form SD no later than 150 days after the end of its fiscal year. The information must be included in an exhibit and electronically tagged using the eXtensible Business Reporting Language (XBRL) format. Resource extraction issuers are required to comply with the rules starting with their fiscal year ending no earlier than September 30, 2018, SEC said.

A resource extraction issuer may use a report prepared for other disclosure regimes to comply with the rules if the Commission determines that the requirements applicable to those reports are substantially similar.

In a separate order issued on Monday, the Commission determined that the current reporting requirements of the European Union Accounting and Transparency Directives (as implemented in a European Union or European Economic Area member country), Canada’s Extractive Sector Transparency Measures Act, and the U.S. Extractive Industries Transparency Initiative (USEITI) are substantially similar to the Commission’s rules, subject to certain conditions specified in the order and in the final rules.

New rules ‘can harm American jobs’

American Petroleum Institute (API) Director of Tax and Accounting Policy, Stephen Comstock, said that the new rule fails to strike the right balance between informing foreign citizens of government revenues and protecting the competitiveness of American companies.

“There appears to be no meaningful difference between this rule and the previous rule struck down by the Courts, so our concerns remain the same. The SEC’s rule forces U.S. companies to disclose proprietary information to its competitors while foreign entities do not. This can give some large industry players an advantage on future business projects, and can fundamentally harm American jobs.

“The SEC ignored industry efforts to disclose information, but to do so in a way that doesn’t give competitors an unfair advantage. The industry actively supports the Extractive Industries Transparency Initiative which takes a global approach and already includes 51 countries that promote transparency and puts all companies on equal footing.

“We need to take a closer look at the impact of the new rule on our operations and determine our next steps. The prior court case held that the SEC’s initial rule was arbitrary and capricious.”