Challenging the Conflict Minerals Rule – A Review of the Docket

Background

On October 22, 2012, the US Chamber of Commerce and the National Association of Manufacturers (Petitioners) filed an Amended Petition for Review with the US Court of Appeals, District of Columbia Circuit. The Petitioners requested that the new Conflict Minerals Rule be modified or set aside in whole or in part. Since then, the Business Roundtable has joined the Petitioners and the two Amnesty International entities have joined the Respondent in the challenge.

Key Proceedings

11/27/2012 Clerk’s Order filed considering motion to expedite case, setting briefing schedule.

The US Court of Appeals, District of Columbia Circuit granted Petitioners’ Motion to Expedite and the briefing schedule as agreed by the parties.

The Clerk ordered the following briefing schedule:

Petitioners’ Opening BriefJanuary 16, 2013Respondent’s BriefMarch 1, 2013Briefs of Any Intervenors or Amici In Support of RespondentsMarch 8, 2013Petitioners’ Reply BriefMarch 22, 2013Deferred AppendixMarch 26, 2013Final BriefsMarch 28, 2013

11/21/2012 Statement of Issues Filed by Business Roundtable, United States Chamber of Commerce and National Association of Manufacturers.

The Petitioners contend that the following issues are grounds for a Petition for Review:

1. Whether the [SEC’s] economic analysis of Rule 13p-1 and Form SD is inadequate, in violation of 15 USC 78c(f), 15 USC 78w(a)(2) and 5 USC 603.
2. Whether the [SEC’s] refusal to adopt a de minimis exception to Rule 13p-1 is erroneous, arbitrary and capricious, or an abuse of discretion.
3. Whether the [SEC’s] interpretation of 15 USC 78m(p)(2)(B) as including non-manufacturers who “contract to manufacture” products is erroneous, arbitrary and capricious, or an abuse of discretion.
4. Whether the [SEC’s] interpretation of “did originate” in 15 USC 78m(p)(1)(A) as “reason to believe…may have originated” is erroneous, arbitrary and capricious, or an abuse of discretion.
5. Whether the standard and requirements imposed by Rule 13p-1’s “reasonable country of origin inquiry” are erroneous, arbitrary and capricious, or an abuse of discretion.
6. Whether the structure of the transition period established by the rule is erroneous, arbitrary and capricious, or an abuse of discretion.
7. Whether 15 USC 78m(p) compels speech in violation of the First Amendment to the US Constitution.
8. Whether the [SEC] otherwise acted in a manner that was arbitrary and capricious, an abuse of discretion, unlawful, or contrary to a constitutional right within the meaning of the Administrative Procedure Act, 5 USC 706, or other applicable law in adopting Rule 13p-1 and Form SD.