A Utopian ‘Conflict Minerals’ Mandate Offers No Practical Solution

Just thinking about the ramifications of a proposed rule from the Securities and Exchange Commission (SEC) on “conflict minerals” causes Irma Villareal, a representative of Kraft Foods, to hyperventilate, The Washington Post reported.

The reason is probably that Congress didn’t do enough thinking when it asked the SEC to write the rule.

The directive was hidden deep in last year’s mammoth Dodd-Frank Wall Street Reform and Consumer Protection Act. Once the SEC promulgates a final rule implementing the provision, Sec. 1502 of the law, all companies listed on U.S. stock exchanges that use certain metals, including tantalum, tin, gold or tungsten, will be required to determine and disclose whether those metals came from the war-torn region that includes the Democratic Republic of the Congo (DRC) and its neighboring countries. According to the law, this is to avoid “helping to finance conflict characterized by extreme levels of violence in the eastern Democratic Republic of the Congo, particularly sexual- and gender-based violence.”

The problem is that many companies have no practical way to ascertain whether their products contain these materials and, if they do, where the minerals were mined. Supply chains frequently span numerous companies and countries, to the point that the first links are all but inaccessible to those at the other end. The National Association of Manufacturers, a leading trade group fighting the proposal, has said that the cost of actually complying with the regulation could be between $9 billion and $16 billion.

The regulation may also result in a shortage of raw materials as companies clamor for a small supply of minerals with thorough documentation, warned Tom Quaadman, the vice president of the U.S. Chamber of Commerce’s Center for Capital Markets Competitiveness.

In the best-case scenario, the SEC will provide a clearly defined procedure companies can follow to demonstrate that, although the process was doomed from the start, they have made a good-faith effort to discover the origins of the metals they use. Millions of dollars (at least) will go down the drain, and no one will really be better off, but the law will have been served.

In the worst-case scenario, the SEC will impose an impossible burden of proof, and some companies will opt to avoid the regulation altogether by not listing their shares on American exchanges. As I have written before, Wall Street is not the only street in the world where stock brokers can do their business. If listing stocks in the U.S. becomes too much of a burden, companies will simply stop doing it, either by avoiding going public in the first place, or by taking their business offshore.

The law was obviously written with the best of intentions. The problems in central Africa are indeed worthy of international concern. When called on to address the SEC, Sen. Richard J. Durbin, D-Ill., a strong backer of the conflict minerals provision, told of his own travels in Africa and of the horrific scenes he witnessed there. He concluded that he would like to be able to enjoy products containing minerals from the region, like cell phones and other high-tech gadgets, “with a clear conscience.”

But, while a politician’s desire for a “clear conscience” is more admirable than, say, a desire for a big pay raise, it’s still not enough to produce good legislation. In the adult world, achieving a clear conscience requires making difficult decisions about costs and feasibility. Addressing serious humanitarian crises, like the conflict in the DRC, in a substantive way requires commitment of national resources and, often, of human lives.

Lawmakers like Durbin seem to believe that all that is required to assuage a troubled conscience is a piece of vaguely worded, feel-good legislation that hands off all responsibilities to regulators and all costs to businesses.

The SEC has been understandably flummoxed as to how to execute this bit of Congressional utopian thinking. The agency issued a draft rule last December, but it failed to meet an April deadline for writing the final regulation, and now, almost a year after putting out that initial proposal, it continues to mull over the options. It is legally bound to follow Congress’ intention. But it also faces the possibility of a court challenge, which any rule in line with Congress’ expressed desires would have difficulty surviving, since the courts will insist that businesses at least have a clear idea of what the rule requires and some reasonable way to comply.

The partnership between Congress and regulatory agencies is an important part of our legislative system. It allows laws to reflect both the will of the people, as expressed by their non-expert representatives, and the technical knowledge that can come only from people with expertise in a particular field. Congress, however, still bears a basic responsibility to understand the costs of what it asks for.

On the surface, the “conflict metals” provision seems like a departure from the rest of the content of the Dodd-Frank Act. On further examination, however, it is just another part of the Pelosi-Reid Congress’ attempt to foist all of the costs of a political and social agenda that they convinced themselves voters wanted onto businesses. (As last year’s election demonstrated, voters wanted no such thing.)

The next time our elected officials stop to wonder why American businesses have not yet invested in new workers and factories, someone might want to remind them that those businesses are busy investing in pointless, unproductive regulatory compliance instead.

About Larry M. Elkin 534 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

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