
[Federal Register Volume 81, Number 144 (Wednesday, July 27, 2016)]
[Rules and Regulations]
[Pages 49359-49430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15676]



[[Page 49359]]

Vol. 81

Wednesday,

No. 144

July 27, 2016

Part II





Securities and Exchange Commission





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17 CFR Parts 240 and 249b





Disclosure of Payments by Resource Extraction Issuers; Final Rule

  Federal Register / Vol. 81 , No. 144 / Wednesday, July 27, 2016 / 
Rules and Regulations  

[[Page 49360]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 240 and 249b

[Release No. 34-78167; File No. S7-25-15]
RIN 3235-AL53


Disclosure of Payments by Resource Extraction Issuers

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting Rule 13q-1 and an amendment to Form SD to 
implement Section 1504 of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act relating to the disclosure of payments by 
resource extraction issuers. Rule 13q-1 was initially adopted by the 
Commission on August 22, 2012, but it was subsequently vacated by the 
U.S. District Court for the District of Columbia. Section 1504 of the 
Dodd-Frank Act added Section 13(q) to the Securities Exchange Act of 
1934, which directs the Commission to issue rules requiring resource 
extraction issuers to include in an annual report information relating 
to any payment made by the issuer, a subsidiary of the issuer, or an 
entity under the control of the issuer, to a foreign government or the 
Federal Government for the purpose of the commercial development of 
oil, natural gas, or minerals. Section 13(q) requires a resource 
extraction issuer to provide information about the type and total 
amount of such payments made for each project related to the commercial 
development of oil, natural gas, or minerals, and the type and total 
amount of payments made to each government. In addition, Section 13(q) 
requires a resource extraction issuer to provide information about 
those payments in an interactive data format.

DATES: Effective date: The final rule and form amendment are effective 
September 26, 2016.
    Compliance date: A resource extraction issuer must comply with the 
final rule and form for fiscal years ending on or after September 30, 
2018.

FOR FURTHER INFORMATION CONTACT: Shehzad K. Niazi, Special Counsel; 
Office of Rulemaking, Division of Corporation Finance, at (202) 551-
3430; or Elliot Staffin, Special Counsel; Office of International 
Corporate Finance, Division of Corporation Finance, at (202) 551-3450, 
U.S. Securities and Exchange Commission, 100 F Street NE., Washington, 
DC 20549.

SUPPLEMENTARY INFORMATION: We are adopting Rule 13q-1 \1\ and an 
amendment to Form SD \2\ under the Securities Exchange Act of 1934 
(``Exchange Act'').\3\
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    \1\ 17 CFR 240.13q-1.
    \2\ 17 CFR 249.448.
    \3\ 15 U.S.C. 78a et seq.
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Table of Contents

I. Introduction and Background
    A. Section 13(q) of the Exchange Act
    B. The 2012 Rules and Litigation
    C. International Transparency Efforts
    1. European Economic Area
    2. Canada
    3. EITI
    D. Summary of the Final Rules
II. Final Rules Under Section 13(q)
    A. Definition of ``Resource Extraction Issuer''
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    B. Definition of ``Commercial Development of Oil, Natural Gas, 
or Minerals''
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    C. Definition of ``Payment''
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    D. Definition of ``Subsidiary'' and ``Control''
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    E. Definition of ``Project''
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    F. Definition of ``Foreign Government'' and ``Federal 
Government''
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    G. Annual Report Requirement
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    H. Public Filing
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    I. Exemption From Compliance
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    J. Alternative Reporting
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    K. Exhibits and Interactive Data Format Requirements
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    L. Treatment for Purposes of Securities Act and Exchange Act
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
    M. Compliance Date
    1. Proposed Rules
    2. Comments on the Proposed Rules
    3. Final Rules
III. Economic Analysis
    A. Introduction and Baseline
    B. Potential Effects Resulting From the Payment Reporting 
Requirement
    1. Benefits
    2. Costs
    C. Potential Effects Resulting From Specific Implementation 
Choices
    1. Exemption From Compliance
    2. Alternative Reporting
    3. Definition of Control
    4. Definition of ``Commercial Development of Oil, Natural Gas, 
or Minerals''
    5. Types of Payments
    6. Definition of ``Not De Minimis''
    7. Definition of ``Project''
    8. Annual Report Requirement
    9. Exhibit and Interactive Data Requirement
IV. Paperwork Reduction Act
    A. Background
    B. Estimate of Issuers
    C. Estimate of Issuer Burdens
    V. Final Regulatory Flexibility Act Analysis
    A. Need for the Rules
    B. Significant Issues Raised by Public Comments
    C. Small Entities Subject to the Rules
    D. Reporting, Recordkeeping, and Other Compliance Requirements
    E. Agency Action To Minimize Effect on Small Entities
VI. Statutory Authority

I. Introduction and Background

    On December 11, 2015, we re-proposed a rule and form amendments-\4\ 
to implement Section 13(q) of the Exchange Act (the ``Proposing 
Release''). Rules implementing Section 13(q) were previously adopted by 
the Commission on August 22, 2012 (the ``2012 Rules''),\5\ but were 
vacated by the U.S. District Court for the District of Columbia by 
order dated July 2, 2013.\6\
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    \4\ Exchange Act Release No. 34-76620 (Dec. 11, 2015), 80 FR 
80057 (Dec. 23, 2015) available at http://www.sec.gov/rules/proposed/2015/34-76620.pdf.
    \5\ See Exchange Act Release No. 67717 (Aug. 22, 2012), 77 FR 
56365 (Sept. 12, 2012) available at http://www.sec.gov/rules/final/2012/34-67717.pdf (the ``2012 Adopting Release''). See also Exchange 
Act Release No. 63549 (Dec. 15, 2010), 75 FR 80978 (Dec. 23, 2010) 
available at http://www.sec.gov/rules/proposed/2010/34-63549.pdf 
(the ``2010 Proposing Release'').
    \6\ API v. SEC, 953 F. Supp. 2d 5 (D.D.C., 2013) (``API 
Lawsuit'').
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A. Section 13(q) of the Exchange Act

    Section 13(q) was added in 2010 by Section 1504 of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act (``the Act'').\7\ It 
directs the Commission to ``issue final rules that require each 
resource extraction issuer to include in an annual report . . . 
information relating to any payment

[[Page 49361]]

made by the resource extraction issuer, a subsidiary of the resource 
extraction issuer, or an entity under the control of the resource 
extraction issuer to a foreign government or the Federal Government for 
the purpose of the commercial development of oil, natural gas, or 
minerals, including--(i) the type and total amount of such payments 
made for each project of the resource extraction issuer relating to the 
commercial development of oil, natural gas, or minerals, and (ii) the 
type and total amount of such payments made to each government.'' \8\
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    \7\ Public Law 111-203 (July 21, 2010).
    \8\ 15 U.S.C. 78m(q)(2)(A). As discussed below, Section 13(q) 
also specifies that the Commission's rules must require certain 
information to be provided in interactive data format.
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    Based on the statutory text and the legislative history, we 
understand that Congress enacted Section 1504 to increase the 
transparency of payments made by oil, natural gas, and mining companies 
to governments for the purpose of the commercial development of their 
oil, natural gas, and minerals. As discussed in more detail below, the 
legislation reflects U.S. foreign policy interests in supporting global 
efforts to improve transparency in the extractive industries.\9\ The 
goal of such transparency is to help combat global corruption and 
empower citizens of resource-rich countries to hold their governments 
accountable for the wealth generated by those resources.\10\ Section 
13(q) also defines several key terms, such as ``resource extraction 
issuer,'' \11\ ``commercial development of oil, natural gas, or 
minerals,'' \12\ ``foreign government,'' \13\ and ``payment,'' \14\ 
each of which is addressed in detail below.
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    \9\ See Section I.C below.
    \10\ See, e.g., 156 Cong. Rec. S3816 (daily ed. May 17, 2010) 
(Statement of Senator Lugar, one of the sponsors of Section 1504) 
(``Adoption of the Cardin-Lugar amendment would bring a major step 
in favor of increased transparency at home and abroad. . . . More 
importantly, it would help empower citizens to hold their 
governments to account for the decisions made by their governments 
in the management of valuable oil, gas, and mineral resources and 
revenues. . . . The essential issue at stake is a citizen's right to 
hold its government to account. Americans would not tolerate the 
Congress denying them access to revenues our Treasury collects. We 
cannot force foreign governments to treat their citizens as we would 
hope, but this amendment would make it much more difficult to hide 
the truth.''); id. at S3817-18 (May 17, 2010) (Statement of Senator 
Dodd) (``[C]ountries with huge revenue flows from energy development 
also frequently have some of the highest rates of poverty, 
corruption and violence. Where is all that money going? [Section 
13(q)] is a first step toward addressing that issue by setting a new 
international standard for disclosure.'').
    \11\ 15 U.S.C. 78m(q)(1)(D).
    \12\ 15 U.S.C. 78m(q)(1)(A).
    \13\ 15 U.S.C. 78m(q)(1)(B).
    \14\ 15 U.S.C. 78m(q)(1)(C).
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    Section 13(q) provides that ``[t]o the extent practicable, the 
rules . . . shall support the commitment of the Federal Government to 
international transparency promotion efforts relating to the commercial 
development of oil, natural gas, or minerals.'' \15\ In light of this 
directive, we have considered significant international initiatives in 
connection with the final rules, such as the Extractive Industries 
Transparency Initiative (``EITI'') and the regulations enacted by the 
European Union and Canada.\16\
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    \15\ 15 U.S.C. 78m(q)(2)(E).
    \16\ See Section I.C below for a discussion of these disclosure 
regimes, including why they are significant. See also Proposing 
Release, nn.13-18 and accompanying text.
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    Pursuant to Section 13(q), the rules we adopt must require a 
resource extraction issuer to submit the payment information included 
in an annual report in an electronic data format in which the 
information is identified using a standardized list of electronic 
tags.\17\ Section 13(q) lists certain electronic tags that must be 
included in the rules to identify specified information \18\ while also 
authorizing the Commission to require additional electronic tags for 
other information that it determines is necessary or appropriate in the 
public interest or for the protection of investors.\19\
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    \17\ 15 U.S.C. 78m(q)(1)(E), (1)(F), (2)(C), (2)(D).
    \18\ These tags include: (I) the total amounts of the payments, 
by category; (II) the currency used to make the payments; (III) the 
financial period in which the payments were made; (IV) the business 
segment of the resource extraction issuer that made the payments; 
(V) the government that received the payments and the country in 
which the government is located; (VI) and the project of the 
resource extraction issuer to which the payments relate. 15 U.S.C. 
78m(q)(2)(D)(ii).
    \19\ 15 U.S.C. 78m(q)(2)(D)(ii)(VII).
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    Section 13(q) further requires, to the extent practicable, that the 
Commission make publicly available online a compilation of the 
information required to be submitted by resource extraction issuers 
under the new rules.\20\ The statute does not define the term 
compilation or describe how it should be generated.
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    \20\ 15 U.S.C. 78m(q)(3).
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    Finally, Section 13(q) provides that the final rules ``shall take 
effect on the date on which the resource extraction issuer is required 
to submit an annual report relating to the fiscal year . . . that ends 
not earlier than one year after the date on which the Commission issues 
final rules . . . .'' \21\
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    \21\ 15 U.S.C. 78m(q)(2)(F).
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B. The 2012 Rules and Litigation

    We adopted final rules implementing Section 13(q) on August 22, 
2012.\22\ Subsequently, in October 2012, the American Petroleum 
Institute (``API''), the U.S. Chamber of Commerce, and two other 
industry groups challenged the 2012 Rules.\23\ On July 2, 2013, the 
U.S. District Court for the District of Columbia vacated the rules.\24\ 
The court based its decision on two findings: first, that the 
Commission misread Section 13(q) to compel the public disclosure of the 
issuers' reports; and second, the Commission's explanation for not 
granting an exemption for when disclosure is prohibited by foreign 
governments was arbitrary and capricious. On September 18, 2014, Oxfam 
America, Inc. filed suit in the U.S. District Court for the District of 
Massachusetts to compel the Commission to promulgate a final rule 
implementing Section 1504. On September 2, 2015, the court issued an 
order holding that the Commission unlawfully withheld agency action by 
not promulgating a final rule.\25\ The Commission filed an expedited 
schedule for promulgating the final rule with the court on October 2, 
2015. Consistent with that schedule, the Commission re-proposed rules 
and form amendments on December 11, 2015. The comment period for the 
re-proposal was divided into an initial comment period and a reply 
comment period. These comment periods were subsequently extended in 
response to a request by the API.\26\ The Commission received 369

[[Page 49362]]

letters (including one form letter submitted 308 times and a petition 
with 116,923 signatures) responding to the requests for comment in the 
Proposing Release.\27\
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    \22\ We received over 150 unique comment letters on the 2010 
Proposing Release, as well as over 149,000 form letters (including a 
petition with 143,000 signatures). The letters, including the form 
letters designated as Type A, Type B, and Type C, are available at 
http://www.sec.gov/comments/s7-42-10/s74210.shtml. In addition, to 
facilitate public input on the Act before the comment periods for 
specific rulemakings opened, the Commission provided a series of 
email links, organized by topic, on its Web site at http://www.sec.gov/spotlight/regreformcomments.shtml. The public comments 
we received on Section 1504 of the Act, which were submitted prior 
to the 2010 Proposing Release, are available on our Web site at 
http://www.sec.gov/comments/df-title-xv/specialized-disclosures/specialized-disclosures.shtml. Many comments were also received 
between the issuance of the 2012 Adopting Release and the recent 
Proposing Release and are available at https://www.sec.gov/comments/df-title-xv/resource-extraction-issuers/resource-extraction-issuers.shtml.
    \23\ See API et al. v. SEC, No. 12-1668 (D.D.C. Oct. 10, 2012). 
Petitioners also filed suit in the U.S. Court of Appeals for the DC 
Circuit, which subsequently dismissed the suit for lack of 
jurisdiction. See API v. SEC, 714 F. 3d 1329 (D.C. Cir. 2013).
    \24\ API v. SEC, 953 F. Supp. 2d 5 (D.D.C., 2013) (``API 
Lawsuit'').
    \25\ Oxfam America, Inc. v. United States Securities and 
Exchange Commission, 126 F. Supp. 3d 168 (D. Mass. 2015).
    \26\ In response to API's request, the Commission extended the 
initial comment period from January 25, 2016 to February 16, 2016 
and the reply comment period from February 16, 2016 to March 8, 
2016. See letter from API (Jan. 7, 2016) and Exchange Act Release 
No. 34-76958 (Jan. 21, 2016), 81 FR 4598 (Jan. 27, 2016), available 
at http://www.sec.gov/rules/proposed/2016/34-76958.pdf.
    \27\ These letters, including the form letters designated as 
Type A and B, are available at http://www.sec.gov/comments/s7-25-15/s72515.shtml.
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C. International Transparency Efforts

    As discussed at length in the Proposing Release, Section 13(q) 
reflects the U.S. foreign policy interest in supporting global efforts 
to improve the transparency of payments made in the extractive 
industries in order to help combat global corruption and promote 
accountability.\28\ We formulated the proposed rules with the purpose 
of furthering these interests, and federal agencies with specific 
expertise in this area submitted comments affirming that the proposed 
rules would accomplish that purpose.\29\ Notably, the U.S. Department 
of State expressed the view that, if adopted, the proposed rule would 
be a ``strong tool to increase transparency and combat corruption'' and 
stated that it would advance ``the United States' strong foreign policy 
interests in promoting transparency and combatting corruption 
globally.'' \30\ In addition, the U.S. Agency for International 
Development (``USAID'') stated that the proposed rule, if adopted, 
would be ``a significant step toward greater energy and mineral 
industry transparency and, correspondingly, strengthened governance and 
civil society anti-corruption efforts.'' \31\ According to USAID, 
``enforcement of the proposed rule would contribute towards U.S. 
Government foreign policy goals of supporting stable and democratic 
governments, and in particular towards USAID's goal of providing 
assistance to resource-rich countries in support of economic growth, 
good governance, transparency, and building civil society.'' \32\
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    \28\ See Section I.E of the Proposing Release, which we hereby 
expressly incorporate by reference. See also 156 Cong. Rec. S3976 
(May 19, 2010) (Sen. Feingold) (explaining that Section 13(q) is 
intended to ``empower[] citizens in resource-rich countries in their 
efforts to combat corruption and hold their governments 
accountable''). The importance placed by the United States and other 
members of the international community on reducing global corruption 
was recently illustrated through the international anti-corruption 
summit that British Prime Minister David Cameron hosted in London on 
May 12, 2016. The summit brought together world leaders, business, 
and civil society to agree to a package of steps to, among other 
things, promote transparency measures that expose corruption. The 
summit adopted a Global Declaration Against Corruption that 
specifically endorsed the promotion of transparency and governance 
in the resource extraction sector. See Global Declaration Against 
Corruption (May 12, 2016), available at https://www.gov.uk/government/publications/global-declaration-against-corruption/global-declaration-against-corruption (last visited June 16, 2016). 
President Obama and the other leaders of the G7 nations in Japan 
during their annual conference similarly emphasized the importance 
of combatting global corruption. See G7 Ise-Shima Leaders' 
Declaration (May 26, 2016), available at http://www.mofa.go.jp/files/000160266.pdf (last visited June 16, 2016) (``[r]ecognizing 
the magnitude of the global problem of corruption'' and 
``reiterat[ing] that our collective and individual action to fight 
corruption is critical for economic growth, sustainable development 
and maintaining peace and security'').
    \29\ We note that the legislative history also indicates that 
Congress intended for the Section 13(q) disclosures to serve as an 
informational tool for investors. See, e.g., 156 Cong. Rec. S3815 
(May 17, 2010) (Sen. Cardin) (``Investors need to know the full 
extent of a company's exposure''); id. at S3816 (May 17, 2010) (Sen. 
Lugar) (``[the disclosures] would empower investors to have a more 
complete view of the value of their holdings'').
    \30\ Letter from the United States Department of State (Jan. 21, 
2016) (``State Department'').
    \31\ Letter from U.S. Agency for International Development (Feb. 
16, 2016) (``USAID''). According to its Web site, USAID ``carries 
out U.S. foreign policy by promoting broad-scale human progress at 
the same time it expands stable, free societies, creates markets and 
trade partners for the United States, and fosters good will 
abroad.'' USAID, Who We Are, available at https://www.usaid.gov/who-we-are (last visited June 16, 2016). USAID is particularly committed 
to transparency, such as the President's Open Government Initiative. 
See USAID, Our Commitment to Transparency, available at https://www.usaid.gov/results-and-data/progress-data/transparency (last 
visited June 16, 2016).
    \32\ Id.
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    Other commenters, including individuals and non-governmental 
organizations, supported the view that Section 13(q) was enacted to 
further the U.S. Government's interest in improving transparency in an 
effort to help combat global corruption and promote accountability.\33\ 
For example, one commenter stated that ``the governmental interest of 
reducing corruption and potentially enhancing governmental 
accountability . . . underpins [Section 13(q)].'' \34\ Another 
commenter stated that ``[p]romoting revenue transparency in the 
extractives sector with a robust implementation of Section 1504 would 
provide civil society the necessary tools to prevent and combat 
corruption worldwide'' and that since ``natural resource extraction 
accounts for at least 10% of GDP in 61 countries, the potential 
benefits of strong rules under Section 1504 are significant in terms of 
healthier and better educated populations, creating more productive 
societies and higher economic growth rates.'' \35\ Comments we received 
on the Proposing Release from former and current members of the U.S. 
Congress supported our interpretation of the transparency and anti-
corruption goals of Section 13(q).\36\ These current and former U.S. 
senators stated that ``transparency is a critical tool to ensure that 
citizens in resource rich countries can monitor the economic 
performance of oil, gas and mining projects and ensure that revenues, 
especially if more meager than hoped, are used responsibly.'' \37\ 
Significantly, this view was not limited to government, civil society, 
and individual commenters. Industry commenters also attested to a link 
between Section 13(q)'s promotion of increased transparency and 
reducing corruption.\38\
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    \33\ See, e.g., letters from American Security Project (Jan. 21, 
2016) (``ASP''); Elise J. Bean (Feb. 16, 2016) (``Bean''); BHP 
Billiton (Jan. 25, 2016) (``BHP''); Pietro Poretti (Feb. 15, 2016) 
(``Poretti''); Publish What You Pay--US (Feb. 16, 2016) (``PWYP-US 
1''); and Transparency International--USA (Feb. 16, 2016) (``TI-
USA'').
    \34\ See letter from Poretti.
    \35\ See letter from TI-USA.
    \36\ See letter from Senators Cardin, Baldwin, Brown, Coons, 
Durbin, Leahy, Markey, Menendez, Markley, Shaheen, Warren, and 
Whitehouse (Feb. 5, 2016) (``Sen. Cardin et al.'') and letter from 
retired Senators Lugar, Dodd, and Levin (Feb. 4, 2016) (``Sen. Lugar 
et al.'').
    \37\ Id.
    \38\ See letters from BHP (``Transparency by governments and 
companies alike regarding revenue flows from the extraction of 
natural resources in a manner which is meaningful, practical and 
easily understood by stakeholders reduces the opportunity for 
corruption'') and Total S.A. (Jan. 13, 2016) (``Total'') (``Total 
considers that the re-introduction of Rule 13q-1 under the Dodd 
Frank Act should both restore a level playing field among major 
publicly-listed oil and gas companies and improve transparency to 
help combat global corruption and increase accountability.'').
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    To determine how best to achieve the policy objectives of Section 
13(q) and to meet the statutory directive to ``support the commitment 
of the Federal Government to international transparency promotion 
efforts'' to the extent practicable, we also have considered the 
current state of international transparency efforts. The following 
discussion addresses the global transparency initiatives that have 
developed since the 2012 Adopting Release was issued, including in the 
European Union, Canada, and through the EITI.\39\ As discussed below, 
these initiatives govern a significant percentage of the companies that 
will be impacted by the final rules.\40\
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    \39\ We look to the EITI because it is a significant 
international transparency framework, it was mentioned in the 
legislative history of Section 13(q), and the definition of 
``payment'' in Section 13(q)(1)(C)(ii) [15 U.S.C. 78m(q)(1)(C)(ii)] 
specifically refers to the EITI. See, e.g., 156 Cong. Rec. S3816 
(daily ed. May 17, 2010) (Statement of Senator Lugar) (``This 
domestic action will complement multilateral transparency efforts 
such as the Extractive Industries Transparency Initiative--the 
EITI--under which some countries are beginning to require all 
extractive companies operating in their territories to publicly 
report their payments.'').
    \40\ See Section III.B.2.b below for our estimates regarding the 
number of resource extraction issuers that are already subject to 
other disclosure regimes. We estimate that approximately 25% of 
resource extraction issuers are already subject to the EU Directives 
or ESTMA, but this percentage does not include resource extraction 
issuers subject to the EITI.

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[[Page 49363]]

1. European Economic Area
    The European Parliament and Council of the European Union adopted 
two directives that include payment disclosure rules.\41\ The EU 
Accounting Directive and the EU Transparency Directive (the ``EU 
Directives'') are very similar to each other in content. They determine 
the applicability and scope of the disclosure requirements and set the 
baseline in each EU member state and European Economic Area (``EEA'') 
\42\ country for annual disclosure requirements for oil, gas, mining, 
and logging companies concerning the payments they make to governments 
on a per country and per project basis.\43\ The EU Accounting Directive 
regulates the provision of financial information by all ``large'' 
companies \44\ incorporated under the laws of an EU member state or 
those of an EEA country, even if the company is privately held. It 
requires covered oil, gas, mining, and logging companies to disclose 
specified payments to governments. The EU Transparency Directive 
applies these disclosure requirements to all companies listed on EU-
regulated markets \45\ even if they are not registered in the EEA or 
are incorporated in other countries.\46\ The EU Directives also apply 
to payments made by entities that are part of a company's consolidated 
report.\47\
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    \41\ Directive 2013/34/EU of the European Parliament and of the 
Council of 26 June 2013 on the annual financial statements, 
consolidated financial statements and related reports of certain 
types of undertakings (``EU Accounting Directive''); and Directive 
2013/50/EU of the European Parliament and of the Council of 22 
October 2013 amending Directive 2004/109/EC on transparency 
requirements in relation to information about issuers whose 
securities are admitted to trading on a regulated market, Directive 
2003/71/EC of the European Parliament and of the Council on the 
prospectus to be published when securities are offered to the public 
or admitted to trading and Commission Directive 2007/14/EC on the 
implementation of certain provisions of Directive 2004/109/EC (``EU 
Transparency Directive'').
    \42\ See European Commission Memo (June 12, 2013) 
(``Commissioner Barnier welcomes European Parliament vote on the 
Accounting and Transparency Directives (including country by country 
reporting)''). The EEA is composed of the EU member states plus 
Iceland, Liechtenstein, and Norway.
    \43\ Unlike the proposed rules and the rules we are adopting 
today, the EU Directives also apply to companies active in the 
logging of primary forests.
    \44\ See Article 3(4) of the EU Accounting Directive, which 
defines large companies (i.e., ``large undertakings'') to mean those 
which on their balance sheet dates exceed at least two of the three 
following criteria: (a) Balance sheet totaling [euro]20 million 
(approximately $22.5 million (USD) as of June 16, 2016); (b) net 
turnover of [euro]40 million (approximately $44.9 million (USD) as 
of June 16, 2016); and (c) average number of employees of 250.
    \45\ The term ``regulated market'' is defined in the EU's 
Markets in Financial Instruments Directive 2004/39/EC (``MiFID''), 
as amended by 2010/78/EU. The list of regulated markets can be found 
on the European Securities and Markets Authority's Web site at 
http://registers.esma.europa.eu/publication/searchRegister?core=esma_registers_mifid_rma (last visited June 16, 
2016).
    \46\ See EU Transparency Directive, Art. 2(1)(d) and Art. 6.
    \47\ See, e.g., EU Accounting Directive, Art. 44.
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    The EU Directives generally cover the following activities: 
``exploration, prospection, discovery, development, and extraction of 
minerals, oil, natural gas deposits or other materials.'' \48\ The 
types of payments that must be disclosed when made in connection with 
those activities include: (a) Production entitlements; (b) taxes levied 
on the income, production, or profits of companies, excluding taxes 
levied on consumption such as value added taxes, personal income taxes, 
or sales taxes; (c) royalties; (d) dividends; (e) signature, discovery, 
and production bonuses; (f) license fees, rental fees, entry fees, and 
other considerations for licenses and/or concessions; and (g) payments 
for infrastructure improvements.\49\ These payments are covered whether 
made ``in money or in kind.'' \50\
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    \48\ EU Accounting Directive, Art. 41(1).
    \49\ See, e.g., EU Accounting Directive, Art. 41(5).
    \50\ Id.
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    Disclosure of payments is made on a per project and per government 
basis. ``Project'' is defined as ``the operational activities that are 
governed by a single contract, license, lease, concession or similar 
legal agreements and form the basis for payment liabilities with a 
government.'' \51\ The definition goes on to state that ``if multiple 
such agreements are substantially interconnected, this shall be 
considered a project.'' \52\ ``Substantially interconnected'' under the 
EU Directives means ``a set of operationally and geographically 
integrated contracts, licenses, leases or concessions or related 
agreements with substantially similar terms that are signed with a 
government, giving rise to payment liabilities.'' \53\
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    \51\ See, e.g., EU Accounting Directive, Art. 41(4).
    \52\ Id. Contrary to the proposed rules and those we are 
adopting today, the EU Directives appear to require aggregation of 
``substantially interconnected'' agreements rather than providing 
such aggregation as an option.
    \53\ See, e.g., EU Accounting Directive, Recital 45.
---------------------------------------------------------------------------

    The EU Directives require public disclosure of the payment 
information, including the issuer's identity.\54\ Further, the EU 
Directives do not provide any exemptions unique to the resource 
extraction payment disclosure requirements. They do, however, allow 
issuers to use reports prepared for foreign regulatory purposes to 
satisfy their disclosure obligations under EU law if those reports are 
deemed equivalent pursuant to specified criteria.\55\ These criteria 
include: (i) Target undertakings; (ii) target recipients of payments; 
(iii) payments captured; (iv) attribution of payments captured; (v) 
breakdown of payments captured; (vi) triggers for reporting on a 
consolidated basis; (vii) reporting medium; (viii) frequency of 
reporting; and (ix) anti-evasion measures. No equivalency 
determinations have been made to-date in the EEA.
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    \54\ See, e.g., EU Accounting Directive, Arts. 43, 45.
    \55\ See, e.g., EU Accounting Directive, Arts. 46, 47.
---------------------------------------------------------------------------

    Member states are granted some leeway for when the report is due 
and what penalties will result from violations of the regulations.\56\ 
Required public disclosure of payments in an annual report by companies 
has begun in the European Union \57\ and will occur in all European 
Union and EEA member countries once the essential provisions have been 
transposed into domestic law in each country.\58\
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    \56\ See, e.g., EU Accounting Directive, Art. 45 (``The report . 
. . on payments to governments shall be published as laid down by 
the laws of each Member State . . . .''); Id. at Article 51 
(``Member States shall provide for penalties applicable to 
infringements of the national provisions adopted in accordance with 
this Directive . . . .'').
    \57\ See, e.g., RDS Report discussed in note 302 below.
    \58\ The requirements of the EU Directives are implemented 
through the enacting legislation of each EEA member country. The 
deadlines for implementing the EU Accounting Directive and the EU 
Transparency Directive were July 20, 2015 and November 26, 2015 
respectively. It is our understanding that as of the date of this 
release, 24 countries have implemented the EU Accounting Directive 
and 15 countries have implemented the EU Transparency Directive. In 
general, non-EU EEA countries enact implementing legislation after 
an EU Directive is adopted into the EEA by Joint Committee decision. 
The EEA Joint Committee adopted the Accounting Directive on October 
30, 2015. As of the date of this release, it is our understanding 
that the EEA Joint Committee has not yet adopted a decision on the 
Transparency Directive. As of June 16, 2016, Austria, Belgium, 
Croatia, the Czech Republic, Denmark, Estonia, Finland, France, 
Germany, Hungary, Italy, Latvia, Lithuania, Lithuania, Luxembourg, 
Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Spain, 
Slovenia, Spain, Sweden, and the United Kingdom have filed 
notifications of full transposition (i.e., implementation) of the 
Accounting Directive with the European Commission. As of June 16, 
2016, Austria, Croatia, Cyprus, Estonia, Finland, France, Germany, 
Greece, Hungary, Italy, Lithuania, The Netherlands, Slovakia, 
Sweden, and the United Kingdom have filed notifications of full 
transposition of the Transparency Directive with the European 
Commission. Norway, a non-EU member of the EEA, adopted legislation 
that complies with both the Accounting and Transparency Directives, 
effective for fiscal years beginning on or after January 1, 2014. 
Other EU and EEA member countries are working towards 
implementation. Updates about member country progress towards full 
transposition can be found at: http://ec.europa.eu/finance/enforcement/directives/index_en.htm#accounting. See also letter from 
Arlene McCarthy OBE (Mar. 8, 2016) (``McCarthy'') (stating that 
``most Member States have transposed the EU Directives'').

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[[Page 49364]]

2. Canada
    Canada also adopted a federal resource extraction disclosure law, 
the Extractive Sector Transparency Measures Act (``ESTMA'') after the 
2012 Adopting Release was issued.\59\ Since the Proposing Release, 
Canada finalized, substantially as proposed, its previously issued 
ESTMA Guidance \60\ and the ESTMA Technical Reporting Specifications 
(``ESTMA Specifications'').\61\ ESTMA covers entities that are engaged 
in the commercial development of oil, gas, or minerals or that control 
another entity that is engaged in those activities, subject to certain 
limitations.\62\ ESTMA defines ``control'' as being controlled by 
another entity ``directly or indirectly, in any manner,'' including 
those entities in a chain of control.\63\ The ESTMA Guidance also 
addresses issues related to how payments are reported in situations of 
joint control.\64\
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    \59\ See ESTMA, 2014 S.C., ch. 39, s. 376 (Can.), which came 
into force on June 1, 2015.
    \60\ ESTMA Guidance, available at http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/mining-materials//ESTMA-Guidance_e.pdf.
    \61\ ESTMA Specifications, available at http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/mining-materials//ESTMA-Technical_e.pdf.
    \62\ ESTMA, Section 2. The reporting obligation applies to (a) 
an entity that is listed on a stock exchange in Canada; (b) an 
entity that has a place of business in Canada, does business in 
Canada or has assets in Canada and that, based on its consolidated 
financial statements, meets at least two of the following conditions 
for at least one of its two most recent financial years: (i) It has 
at least[thinsp]$20 million (CAD) in assets (approximately $15.4 
million (USD) as of June 16, 2016), (ii) it has generated at 
least[thinsp]$40 million (CAD) in revenue (approximately $30.8 
million (USD) as of June 16, 2016), (iii) it employs an average of 
at least 250 employees; and (c) any other prescribed entity. ESTMA, 
Section 8.
    \63\ ESTMA, Section 4(1)-(2). For example, in the statute's 
words an ``entity that controls another entity is deemed to control 
any entity that is controlled, or deemed to be controlled, by the 
other entity.'' ESTMA, Section 4(2).
    \64\ ESTMA Guidance, Section 3.6 clarifies that if a Reporting 
Entity makes a payment, it must report it, whether made as an 
operator of a joint arrangement or as a member of a joint 
arrangement. Also, if a payment is made by an entity that is not 
subject to ESTMA but is controlled by a Reporting Entity, the 
Reporting Entity must report it. Payment attribution rules set out 
in ESTMA may apply in situations of joint control. The ESTMA 
Guidance goes on to say that Reporting Entities should consider the 
facts and circumstances of payments when determining whether to 
report and which payments to report in situations of joint control.
---------------------------------------------------------------------------

    ESTMA defines ``commercial development of oil, gas or minerals'' as 
the exploration or extraction of oil, gas, or minerals; the acquisition 
of a permit, license, lease, or any other authorization to carry out 
the exploration or extraction of oil, gas, or minerals; or any other 
prescribed activities in relation to oil, gas, or minerals.\65\ The 
ESTMA Guidance clarifies that exploration or extraction refers to ``the 
key phases of commercial activity which occur during the life cycle of 
an oil, gas or mineral project'' and extend to prospecting, 
remediation, and reclamation.\66\ The ESTMA Guidance also states that 
these terms are not limited to ``active phases of operations on the 
ground, but also captures temporary periods of inactivity.'' \67\ The 
definition is not meant to cover ancillary or preparatory activities 
such as manufacturing equipment or the construction of extraction 
sites.\68\ The definition also generally does not cover post-extraction 
activities, such as refining, smelting, processing, marketing, 
distribution, transportation, or export.\69\ Nevertheless, certain 
initial processing activities that are integrated with extraction 
operations may be considered commercial development of oil, gas, or 
minerals.\70\
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    \65\ ESTMA, Section 2. Canada does not appear to have prescribed 
any additional activities at this time. See ESTMA Guidance, Section 
1, which only refers to the first two prongs of ESTMA's definition 
of ``commercial development of oil, gas and minerals.''
    \66\ ESTMA Guidance, Section 1.
    \67\ Id.
    \68\ Id.
    \69\ Id.
    \70\ Id.
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    Canada's regulations capture the following payment types: Taxes 
(other than consumption taxes and personal income taxes); royalties; 
fees (including rental fees, entry fees and regulatory charges, as well 
as fees or other consideration for licenses, permits or concessions); 
production entitlements; bonuses (including signature, discovery and 
production bonuses); dividends (other than dividends paid to payees as 
ordinary shareholders); and infrastructure improvement payments.\71\ 
The ESTMA Guidance also includes a provision similar to the anti-
evasion provision included in the Proposing Release. It states that 
entities should look to the substance, rather than the form, of 
payments in determining which category is applicable, and that in 
certain circumstances a philanthropic or voluntary contribution made in 
lieu of one of the payment categories would need to be reported.\72\
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    \71\ ESTMA Guidance, Section 3.1.
    \72\ ESTMA Guidance, Section 3.5.
---------------------------------------------------------------------------

    Unlike the EU Directives, which do not provide for any exemptions 
unique to resource extraction payment disclosure, ESTMA authorizes the 
adoption of regulations respecting, among other matters, ``the 
circumstances in which any provisions of this Act do not apply to 
entities, payments or payees.'' \73\ As of the date of this release, 
the Minister of Natural Resources Canada has not authorized any 
regulations pursuant to that provision that provide for exemptions 
under ESTMA. ESTMA did, however, defer the requirement for issuers to 
report payments made to Aboriginal governments in Canada until June 1, 
2017.\74\
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    \73\ See ESTMA, Section 23(1).
    \74\ ESTMA Guidelines, Section 3.3.
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    Canada has adopted project-level reporting, and the definition of 
``project'' used in the ESTMA Specifications is identical to the 
definition of that term in the EU Directives.\75\ Reports prepared 
under ESTMA must be published on the internet ``so they are available 
to the public'' and a link to the report must be provided to the 
Canadian government.\76\
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    \75\ See ESTMA Specifications, Section 2.3.2.
    \76\ ESTMA Specifications, Section 2.4.
---------------------------------------------------------------------------

    Like the EU Directives, ESTMA allows for the Minister of Natural 
Resources Canada to determine that the requirements of another 
jurisdiction are an acceptable substitute for the domestic 
requirements.\77\ As noted in the Proposing Release, on July 31, 2015 
the Minister determined that the reporting requirements set forth in 
the EU Directives were an acceptable substitute for Canada's 
requirements under ESTMA.\78\ Canada's current substitution policy 
makes an assessment based on whether a jurisdiction's reporting 
requirements (1) achieve the purposes of the reporting requirements 
under ESTMA (as stated, to ``deter corruption through public 
transparency'') and (2) address a similar scope of the reporting 
requirements under ESTMA.\79\ Canada requires that an issuer must be 
subject to the reporting requirements of the other jurisdiction and 
must have provided the report to the other jurisdiction's competent 
authority. Although it has adopted a reporting deadline of 150 days 
after the end of an issuer's financial (i.e., fiscal) year, Canada

[[Page 49365]]

allows for substituted reports to be filed according to the other 
jurisdiction's deadline if the Department of Natural Resources Canada 
is notified by email within the 150 day period.\80\ If the other 
jurisdiction's deadline is shorter than 150 days, the issuer may still 
follow the 150 day deadline when submitting the report in Canada.\81\
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    \77\ See ESTMA, Section 10(1) (``If, in the Minister's opinion, 
and taking into account any additional conditions that he or she may 
impose, the payment reporting requirements of another jurisdiction 
achieve the purposes of the reporting requirements under this Act, 
the Minister may determine that the requirements of the other 
jurisdiction are an acceptable substitute . . . .'').
    \78\ Substitution Process and Determination, available at http://www.nrcan.gc.ca/mining-materials/estma/18196 (last visited June 16, 
2016).
    \79\ See id.
    \80\ Id.
    \81\ Id.
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3. EITI
    The EITI is a voluntary coalition of oil, natural gas, and mining 
companies, foreign governments, investor groups, and other 
international organizations. The coalition was formed to foster and 
improve transparency and accountability in resource-rich countries 
through the publication and verification of company payments and 
government revenues from oil, natural gas, and mining.\82\ A country 
volunteers to become an EITI candidate and must complete an EITI 
validation process to become a compliant member.\83\ Currently 51 
countries are EITI implementing countries.\84\ Furthermore, several 
countries not currently a part of the EITI have indicated their 
intention to implement the EITI.\85\ We analyze the EITI using the 
guidance in the EITI Standard and the EITI Handbook on what should be 
included in a country's EITI plan, as well as reports made by EITI 
member countries.\86\ The U.S. Extractive Industries Transparency 
Initiative (``USEITI'') issued its first report in December 2015.\87\ 
The report covered payments made to the U.S. Federal Government in 
2013, including $12.6 billion for extraction on federal lands and $11.8 
billion in corporate income tax receipts from mining and petroleum and 
coal products manufacturing industries.\88\
---------------------------------------------------------------------------

    \82\ See Implementing EITI for Impact-A Handbook for 
Policymakers and Stakeholders (2011) (``EITI Handbook''), at xii.
    \83\ Notably, in enacting Section 13(q)'s mandatory disclosure 
requirement, Congress sought to complement the EITI's existing 
voluntary transparency efforts that too many countries and too many 
companies either had not joined or would not. 156 Cong. Rec. S3815 
(May 17, 2010) (Sen. Lugar). See also id. S3815 (May 17, 2010) (Sen. 
Cardin) (stating that ``We currently have a voluntary international 
standard for promoting transparency. A number of countries and 
companies have joined [EITI], an excellent initiative that has made 
tremendous strides in changing the cultural secrecy that surrounds 
extractive industries. But too many countries and too many companies 
remain outside this voluntary system.''); id. S3818 (May 17, 2010) 
(Sen. Dodd) (stating that ``broad new requirements for greater 
disclosure by resource extractive companies operating around the 
world . . . would be an important step'' to complement EITI's 
``voluntary program'').
    \84\ See https://eiti.org/countries/ (last visited June 16, 
2016). Of those, 31 have achieved ``EITI compliant'' status, two 
have had their EITI status temporarily suspended, and the rest are 
implementing the EITI requirements but are not yet compliant. Id. 
When becoming an EITI candidate, a country must establish a multi-
stakeholder group, including representatives of civil society, 
industry, and government, to oversee implementation of the EITI. The 
stakeholder group for a particular country agrees to the terms of 
that country's EITI plan, including the requirements for what 
information will be provided by the governments and by the companies 
operating in that country. Generally, under the EITI, companies and 
the host country's government submit payment information 
confidentially to an independent administrator selected by the 
country's multi-stakeholder group, which is frequently an 
independent auditor. The auditor reconciles the information provided 
to it by the government and by the companies and produces a report. 
While the information provided in the reports varies among 
countries, the reports must adhere to the EITI requirements provided 
in the EITI Standard (2016). See the EITI's Web site at http://eiti.org (last visited June 16, 2016).
    \85\ See https://eiti.org/countries/other (last visited June 16, 
2016).
    \86\ The EITI Standard encompasses several documents fundamental 
to the EITI: (1) The ``EITI Principles,'' which set forth the 
general aims and commitments of EITI participants; (2) the ``EITI 
Requirements,'' which must be followed by countries implementing the 
EITI; (3) the ``Validation Guide,'' which provides guidance on the 
EITI validation process; (4) the ``Protocol: Participation of Civil 
Society,'' which provides guidance regarding the role of civil 
society in the EITI; and (5) documents relevant to the governance 
and management of the EITI (e.g., the EITI Articles of Association, 
the EITI Openness Policy, and the EITI Code of Conduct). The EITI 
Handbook provides guidance on implementing the EITI, including 
overcoming common challenges to EITI implementation. All references 
to the EITI Standard are to the 2016 edition.
    \87\ The Executive Summary and other aspects of the USEITI 2015 
Report are available at https://useiti.doi.gov/about/report/. In 
December 2012, the U.S. Government established a multi-stakeholder 
group, the USEITI Advisory Committee, headed by the Department of 
the Interior (``Department of Interior'') and including the 
Departments of Energy and Treasury, as well as members of industry 
and civil society. See Multi-Stakeholder Group List of Members, at 
http://www.doi.gov/eiti/FACA/upload/List-of-Members_03-16-15.pdf. On 
March 19, 2014, the United States completed the process of becoming 
an EITI candidate country.
    \88\ Revenues reported to the federal government were for the 
fiscal year ended September 30, 2013. Corporate income taxes and 
most other payments were reported as of the calendar year ended 
December 31, 2013. See the 2015 USEITI Executive Summary at 2.
---------------------------------------------------------------------------

    At a minimum, the EITI requires the disclosure of material payment 
and revenue information related to the upstream activities of 
exploration and production, but permits each country's multi-
stakeholder group to broaden the scope of the EITI report to include 
revenue streams (i.e., payments made in cash or in kind) related to 
other natural resource sectors, such as forestry, or to those related 
to non-upstream activities, such as export.\89\ Revenue streams 
required to be disclosed under the EITI include production entitlements 
to the host government and to its national, state-owned company; 
profits taxes; royalties; dividends; bonuses, such as signature, 
discovery and production bonuses; and license fees, including rental 
fees, entry fees and other considerations for licenses or 
concessions.\90\ The EITI also requires the disclosure of any other 
``significant payment'' and ``material benefit'' to the host 
government.\91\ These include material infrastructure works,\92\ as 
well as material social expenditures if mandated by law or 
contract.\93\
---------------------------------------------------------------------------

    \89\ See EITI Standard at 22-23 and EITI Handbook at 31 and 33. 
As an initial matter, each country's multi-stakeholder group is 
required to establish the thresholds for materiality and to 
determine which payments and revenues are material. While the EITI 
Standard requires each implementing country to provide export data 
for the fiscal year covered by the EITI Report, including total 
export volumes and the value of exports by commodity, the reporting 
of export payments by individual companies is not required and is at 
the option of the multi-stakeholder group.
    \90\ See EITI Standard at 23.
    \91\ See EITI Standard at 23.
    \92\ See EITI Standard at 24.
    \93\ See EITI Standard at 28. In addition, if the multi-
stakeholder group determines that revenues from the transportation 
of oil, gas and minerals are material, the EITI expects governments 
and state-owned enterprises to disclose the revenues received. See 
EITI Standard at 24.
---------------------------------------------------------------------------

    The EITI has long required the disclosure of the particular type of 
revenue stream and government entity that received each payment in the 
EITI Report.\94\ Since 2013, the EITI has also required the public 
reporting of these revenue streams by individual company, rather than 
as aggregated data, and by project, provided that such project level 
disclosure is consistent with the European Union and Commission 
rules.\95\
---------------------------------------------------------------------------

    \94\ See, e.g., the EITI Source Book (2005) at 26.
    \95\ See EITI Standard at 25.
---------------------------------------------------------------------------

    Currently each implementing country's multi-stakeholder group 
determines which companies should be included in the EITI Report. Out 
of concern that developing countries have lost significant revenues 
``as a result of corrupt or illegal deals'' involving ``anonymous 
companies'' that have ``hidden behind a structure of complex and secret 
company ownership,'' \96\ the EITI has recently commenced a process 
that, by January 2020, will require individual companies that bid for, 
operate or invest in the extractive assets of an EITI implementing 
country to identify their beneficial owners, disclose the level of 
ownership, and describe how ownership or control is exerted in the EITI 
Report.\97\
---------------------------------------------------------------------------

    \96\ See EITI Beneficial Ownership Fact Sheet (2016) available 
at https://eiti.org/files/eiti_bo_factsheet_en_final_may_2016.pdf.
    \97\ See EITI Standard at 19-21; see also EITI Beneficial 
Ownership Fact Sheet. Currently the EITI requires that, by January 
1, 2017, each multi-stakeholder group publish a roadmap for 
disclosing the beneficial ownership information mandated in 2020. 
The EITI also recommends that each implementing country establish a 
public register of beneficial ownership to the extent none exists. 
See EITI Standard at 19-21. The EITI defines ``beneficial 
ownership'' to mean ``the natural person(s) who directly or 
indirectly ultimately owns or controls the corporate entity.'' EITI 
Standard at 20. We note that, in these ways, the EITI is concerned 
with more than just the actual revenue flows that result after a 
deal is entered, but is also concerned with providing transparency 
so that citizens and civil society can help ensure that the deals 
themselves do not involve corrupt or suspect arrangements. As we 
discuss below in Section II.E, we similarly believe that Section 
13(q) is concerned not just with corruption after a deal is entered, 
but also with exposing potential corruption that may surround the 
underlying deal and the resulting payment flows.

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[[Page 49366]]

D. Summary of the Final Rules

    The final rules, which are described in more detail in Part II 
below, are being adopted mostly as proposed, with a few significant 
changes based on feedback from commenters and other developments since 
the Proposing Release was issued. The final rules require resource 
extraction issuers to file a Form SD on an annual basis that includes 
information about payments related to the commercial development of 
oil, natural gas, or minerals that are made to governments. The 
following are key provisions of the final rules:

     The term ``resource extraction issuer'' means all U.S. 
companies and foreign companies that are required to file annual 
reports pursuant to Section 13 or 15(d) of the Exchange Act \98\ and 
are engaged in the commercial development of oil, natural gas, or 
minerals.
---------------------------------------------------------------------------

    \98\ 15 U.S.C. 78m and 78o(d).
---------------------------------------------------------------------------

     The term ``commercial development of oil, natural gas, 
or minerals'' means, consistent with Section 13(q), exploration, 
extraction, processing, and export, or the acquisition of a license 
for any such activity.
     The term ``payment'' means payments that are made to 
further the commercial development of oil, natural gas, or minerals, 
are ``not de minimis,'' and includes taxes, royalties, fees 
(including license fees), production entitlements, and bonuses, 
consistent with Section 13(q), as well as community and social 
responsibility payments (``CSR payments'') that are required by law 
or contract, dividends, and payments for infrastructure 
improvements.
     ``Not de minimis'' means any payment, whether a single 
payment or a series of related payments, that equals or exceeds 
$100,000 during the most recent fiscal year.
     A resource extraction issuer is required to disclose 
payments made by its subsidiaries and other entities under its 
control. Under the final rules, an issuer must disclose the payments 
made by entities that are consolidated, or its proportionate amount 
of the payments made by entities or operations that are 
proportionately consolidated, in its consolidated financial 
statements as determined by applicable accounting principles.\99\
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    \99\ We note that Exchange Act Rule 12b-21 provides that 
required information need be given only insofar as it is known or 
reasonably available to the registrant, subject to certain 
conditions. 17 CFR 240.12b-21.
---------------------------------------------------------------------------

     The term ``project'' means operational activities that 
are governed by a single contract, license, lease, concession, or 
similar legal agreement, which form the basis for payment 
liabilities with a government. Agreements that are both 
operationally and geographically interconnected may be treated by 
the resource extraction issuer as a single project.
     The term ``foreign government'' means a foreign 
government, a department, agency, or instrumentality of a foreign 
government, or a company at least majority owned by a foreign 
government. It includes a foreign national government as well as a 
foreign subnational government, such as the government of a state, 
province, county, district, municipality, or territory under a 
foreign national government.
     The term ``Federal Government'' means the United States 
Federal Government.
     A resource extraction issuer must file its payment 
disclosure on Form SD using the Commission's Electronic Data 
Gathering, Analysis, and Retrieval System (``EDGAR''), no later than 
150 days after the end of its fiscal year. In addition to this EDGAR 
compilation of Form SD filings, a separate public compilation of the 
payment information submitted in the Form SD filings will be made 
available online by the Commission's staff.
     A resource extraction issuer must disclose the payment 
information and its identity publicly.
     The final rules include two exemptions that provide for 
transitional relief or delayed reporting in limited circumstances. 
These exemptions provide a longer transition period for recently 
acquired companies that were not previously subject to reporting 
under the final rules and a one-year delay in reporting payments 
related to exploratory activities. In addition, resource extraction 
issuers may apply for, and the Commission will consider, exemptive 
relief for other situations on a case-by-case basis pursuant to Rule 
0-12 of the Exchange Act.\100\
---------------------------------------------------------------------------

    \100\ 17 CFR 240.0-12.
---------------------------------------------------------------------------

     Resource extraction issuers may use alternative reports 
to comply with the final rules if the Commission determines that the 
requirements applicable to those reports are substantially similar 
to our own.\101\
---------------------------------------------------------------------------

    \101\ See Item 2.01(c) of Form SD.
---------------------------------------------------------------------------

     The Commission has determined that the current 
reporting requirements of the EU Directives, Canada's ESTMA, and the 
USEITI are substantially similar to the final rules, subject to the 
conditions specified below in Section II.J. Applications for 
additional alternative reporting determinations may be submitted 
under Rule 0-13 by issuers, governments, industry groups, and trade 
associations.
     Resource extraction issuers, including those using 
alternative reports, must present the payment disclosure using the 
eXtensible Business Reporting Language (``XBRL'') electronic format 
and the electronic tags identified in Form SD. The tags listed in 
Form SD include those specified in Section 13(q), as well as tags 
for the type and total amount of payments made for each project, the 
type and total amount of payments made to each government, the 
particular resource that is the subject of commercial development, 
and the subnational geographic location of the project.
     Resource extraction issuers are required to comply with 
the rules starting with their fiscal year ending no earlier than 
September 30, 2018.
    As we discuss more fully throughout the remainder of this release, 
in developing the final rules we have sought to balance the various 
statutory interests at issue in this rulemaking: On the one hand, 
providing transparency to help combat corruption and promote 
accountability, and on the other hand, doing so in ways that reflect a 
consideration of competition, efficiency, capital formation, and 
costs.\102\ For example, with regard to the appropriate definition of 
project and the public disclosure of each issuer's annual reports--two 
discretionary decisions that, in many respects, are central to the 
transparency regime being adopted--we determined that the anti-
corruption and accountability concerns underlying Section 13(q) will be 
significantly advanced by the public disclosure of each issuer's 
contract-based payment data. In making these discretionary decisions, 
we were mindful of the potential economic consequences that issuers 
might experience. As another example of our consideration of the 
various policy interests at stake, given the potential for competitive 
harm to issuers, we are adopting a targeted exemption to permit issuers 
to delay reporting payment information in connection with certain 
exploratory activities for one year. Further, we intend to consider 
using our existing authority under the Exchange Act to afford resource 
extraction issuers exemptive relief when other circumstances warrant. 
For example, issuers may seek exemptive relief when foreign laws may 
prohibit the Section 13(q) disclosures. This exemptive process should 
help mitigate the final rules' potential adverse effects on issuers 
while still preserving the transparency objectives of the statute. 
Similarly, we have adopted a revised definition of control and allowed 
for issuers to satisfy the rules' requirements by providing reports 
prepared in compliance with other jurisdictions' reporting 
requirements, which should

[[Page 49367]]

help lower direct compliance costs for issuers.
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    \102\ See letter from API 1 (Feb. 16, 2016) (``API 1'') 
(asserting that Congress intended that the Commission consider 
investor protection, as well as competition, efficiency, and cost 
concerns, when issuing the final rules under Section 13(q)).
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II. Final Rules Under Section 13(q)

A. Definition of ``Resource Extraction Issuer''

1. Proposed Rules
    Section 13(q) defines a ``resource extraction issuer'' as an issuer 
that is ``required to file an annual report with the Commission'' and 
``engages in the commercial development of oil, natural gas, or 
minerals.'' \103\ The proposed definition followed the statute without 
providing any exemptions based on size, ownership, foreign private 
issuer status,\104\ or the extent of business operations constituting 
commercial development of oil, natural gas, or minerals.
---------------------------------------------------------------------------

    \103\ Section 13(q)(1)(D).
    \104\ We did not, however, propose to extend the disclosure 
requirements to foreign private issuers that are exempt from 
Exchange Act registration and reporting obligations pursuant to 
Exchange Act Rule 12g3-2(b).
---------------------------------------------------------------------------

    We proposed to cover only issuers filing annual reports on Forms 
10-K, 20-F, or 40-F.\105\ Specifically, the proposed rules defined the 
term ``resource extraction issuer'' to mean an issuer that is required 
to file an annual report with the Commission pursuant to Section 13 or 
15(d) of the Exchange Act and that engages in the commercial 
development of oil, natural gas, or minerals. The proposed definition 
excluded issuers subject to Tier 2 reporting requirements under 
Regulation A or subject to Regulation Crowdfunding's reporting 
requirements. In addition, we did not subject investment companies 
registered under the Investment Company Act of 1940 (``Investment 
Company Act'') to the proposed rules.
---------------------------------------------------------------------------

    \105\ See Section II.A of the Proposing Release.
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on whether certain 
categories of issuers should be exempt from the rules, such as smaller 
reporting companies, emerging growth companies, or foreign private 
issuers.\106\ In addition to these categories addressed in existing 
Commission rules, we asked whether the Commission should exempt issuers 
based on a financial test that would measure the likelihood of the 
issuer making resource extraction payments above the proposed de 
minimis threshold. We offered the example of using annual revenues and 
net cash flows from investing activities to make this measurement. We 
also solicited comment on whether, instead of an exemption, the rules 
should provide for different disclosure and reporting obligations for 
certain types of issuers. Finally, we solicited comment on whether we 
should provide for a delayed implementation date for certain categories 
or types of issuers in order to provide them additional time to prepare 
for the disclosure requirements and the benefit of observing how other 
companies comply.\107\
---------------------------------------------------------------------------

    \106\ See the definition of ``smaller reporting company'' in 
Exchange Act Rule 12b-2 [17 CFR 240.12b-2], the definition of 
``emerging growth company'' in Exchange Act Section 3(a)(80) [15 
U.S.C. 78c(a)(80)], and the definition of ``foreign private issuer'' 
in Exchange Act Rule 3b-4 [17 CFR 240.3b-4].
    \107\ For a discussion of this request for comment, see Section 
II.G below.
---------------------------------------------------------------------------

    Only one commenter on the Proposing Release recommended changing 
the scope of the definition of resource extraction issuer to add an 
exemption based on the type of issuer.\108\ This commenter sought an 
exemption for foreign private issuers on the grounds that issuers 
should only bear the compliance burden associated with their home 
jurisdiction. Other commenters on the Proposing Release that addressed 
this topic were generally supportive of the proposed definition of 
``resource extraction issuer'' and opposed excluding any category of 
issuer from the definition.\109\ No commenter specifically addressed 
our exclusion of investment companies and companies required to file 
annual reports other than pursuant to Section 13 or 15(d) of the 
Exchange Act.
---------------------------------------------------------------------------

    \108\ See letter from BP p.l.c. (Feb. 16, 2016) (``BP'').
    \109\ See letters from Africa Centre for Energy Policy (Feb. 16, 
2016) (``ACEP''); Calvert Investments (Feb. 16, 2016) (``Calvert''); 
U.S. Department of Interior, Office of Natural Resources Revenue 
(Feb. 17, 2016) (``Department of Interior''); Form Letter A; Form 
Letter B; Global Witness (Feb. 16, 2016) (``Global Witness 1''); 
Oxfam America (Feb. 16, 2016) (``Oxfam 1''); Natural Resource 
Governance Institute (First of two letters on Feb. 16, 2016) (``NRGI 
1''); Sarah Peck and Sarah Chayes (Feb. 16, 2016) (``Peck & 
Chayes''); PWYP-US 1; Jacqueline Quinones (Feb. 4, 2016) 
(``Quinones''); Sen. Cardin et al.; Sen. Lugar et al.; TI-USA; and 
US SIF: The Forum for Sustainable and Responsible Investment (Mar. 
8, 2016) (``USSIF'').
---------------------------------------------------------------------------

    Of the commenters that expressed support for the proposed 
definition, several indicated that the proposed rules did not present 
unique challenges for particular categories of issuers and thus no 
exemptions were necessary.\110\ One of these commenters stated that 
because smaller reporting companies and foreign private issuers were 
exposed to significant political regulatory risks, excluding them would 
undermine the value of the rules to investors.\111\ The Department of 
Interior noted that the USEITI covers all companies that conduct 
extractive activities on public and tribal lands in the United States, 
without exemption.\112\ It also recommended not providing an exemption 
that would allow an issuer to avoid reporting in a subsequent year 
based on financial metrics due to the ``cyclical nature of extractive 
commodity prices.''
---------------------------------------------------------------------------

    \110\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \111\ See letter from USSIF.
    \112\ Letter from Department of Interior.
---------------------------------------------------------------------------

3. Final Rules
    We are adopting the proposed definition of ``resource extraction 
issuer.'' Under the final rules, resource extraction issuers are 
issuers that are required to file an annual report with the Commission 
pursuant to Section 13 or 15(d) of the Exchange Act and engage in the 
commercial development of oil, natural gas, or minerals.\113\
---------------------------------------------------------------------------

    \113\ We continue to interpret ``engages'' as used in Section 
13(q) and Rule 13q-1 to include indirectly engaging in the specified 
commercial development activities through an entity under a 
company's control. See Section II.D below for a discussion of 
``control'' as used in the final rules. See also Proposing Release, 
n. 101.
---------------------------------------------------------------------------

    As discussed above, almost all of the commenters on the Proposing 
Release supported the proposed definition or called for the rules to 
cover all companies without exemptions. We disagree with the commenter 
that suggested foreign private issuers should be excluded from the 
definition of ``resource extraction issuer.'' \114\ This commenter 
stated that an exemption for all foreign private issuers was 
justifiable so that issuers only bear the compliance burden associated 
with one set of transparency rules. We note, however, that not all 
foreign private issuers will be required to report in other 
jurisdictions. Further, even if the issuer is required to file reports 
in another jurisdiction, an exemption for all foreign private issuers 
leaves open the possibility that the foreign private issuer's reporting 
could be pursuant to a jurisdiction's requirements that are 
significantly different than the Commission's rules. Instead, we 
believe that it is more appropriate to address concerns over 
duplicative reporting through the alternative reporting provisions we 
are adopting today.\115\
---------------------------------------------------------------------------

    \114\ See letter from BP.
    \115\ See Section II.J below. We note that the commenter that 
raised these concerns indicated that if the Commission did not adopt 
an exemption for foreign private issuers, it would support an 
alternative reporting provision. See letter from BP.
---------------------------------------------------------------------------

    No commenters on the Proposing Release specifically requested that 
the Commission extend the disclosure requirements to foreign private 
issuers that are exempt from Exchange Act registration and reporting 
obligations

[[Page 49368]]

pursuant to Exchange Act Rule 12g3-2(b). As we discussed in the 
Proposing Release,\116\ we continue to believe that expanding the 
statutory definition to include such issuers is not appropriate because 
it would discourage reliance on Rule 12g3-2(b) and would be 
inconsistent with the effect, and we believe the purpose, of that 
rule.\117\
---------------------------------------------------------------------------

    \116\ See Section II.A. of Proposing Release.
    \117\ As we discussed in the Proposing Release, Rule 12g3-2(b) 
provides relief to foreign private issuers that are not currently 
Exchange Act reporting companies (i.e., they are neither listed nor 
have made a registered offering in the United States) and whose 
primary trading market is located outside the United States. In 
these circumstances, we do not believe it would be appropriate to 
require foreign private issuers whose connections with the U.S. 
markets do not otherwise require them to make reports with the 
Commission to undertake such an obligation solely for the purpose of 
providing the required payment information. Moreover, imposing a 
reporting obligation on such issuers would seem to go beyond what is 
contemplated by Section 13(q), which defines a ``resource extraction 
issuer'' as an issuer that is ``required to file an annual report 
with the Commission.''
---------------------------------------------------------------------------

    Although, as we stated in the Proposing Release, we believe that 
the statutory language could reasonably be read either to cover or to 
exclude issuers that file annual reports on forms other than Forms 10-
K, 20-F, and 40-F, we also continue to believe that covering other 
issuers would do little to further the transparency objectives of 
Section 13(q). It would, however, add costs and burdens to the existing 
disclosure regimes governing those categories of issuers. For example, 
and as noted in the Proposing Release, none of the Regulation A issuers 
with qualified offering statements between 2009 and 2014 appear to have 
been resource extraction issuers at the time of those filings.\118\ 
That remains the case for Regulation A issuers that qualified offering 
statements in 2015. We also continue to believe that it is unlikely 
that an entity that fits within the definition of an ``investment 
company'' \119\ would be one that is ``engag[ing] in the commercial 
development of oil, natural gas, or minerals.'' Accordingly, the final 
rules we are adopting will not apply to such issuers.\120\
---------------------------------------------------------------------------

    \118\ Based on a review of their assigned Standard Industrial 
Classification (SIC) codes. We recognize that Tier 2 of Regulation 
A, with a maximum offering amount of $50 million, is still 
relatively new and that the types of companies previously or 
currently using Regulation A may not be representative of its future 
use. In addition, since Regulation A issuers were not required to 
file annual reports when Section 13(q) was enacted, it seems 
unlikely that Congress contemplated Regulation A issuers having to 
comply with Section 13(q). Given the added costs and burdens 
discussed in the Proposing Release, we continue to believe that it 
is not prudent to extend the rule to Regulation A issuers at this 
time. See Proposing Release, Section II.A.
    \119\ See Section 3(a)(1) of the Investment Company Act (15 
U.S.C. 80a-3(a)(1)).
    \120\ See Proposing Release, Section II.A for a discussion of 
the factors we considered.
---------------------------------------------------------------------------

B. Definition of ``Commercial Development of Oil, Natural Gas, or 
Minerals''

1. Proposed Rules
    Section 13(q) defines ``commercial development of oil, natural gas, 
or minerals.'' Consistent with the statute, we proposed defining 
``commercial development of oil, natural gas, or minerals'' as 
exploration, extraction, processing, and export of oil, natural gas, or 
minerals, or the acquisition of a license for any such activity. 
Although we have discretionary authority to include other significant 
activities relating to oil, natural gas, or minerals,\121\ we did not 
propose expanding the definition beyond the explicit terms of Section 
13(q).
---------------------------------------------------------------------------

    \121\ See Section 13(q)(1)(A).
---------------------------------------------------------------------------

    As discussed in the Proposing Release, the proposed definition of 
``commercial development'' was intended to capture only activities that 
are directly related to the commercial development of oil, natural gas, 
or minerals, and not activities ancillary or preparatory to such 
commercial development.\122\ We also proposed additional guidance on 
several terms contained within the definition of ``commercial 
development of oil, natural gas, or minerals.'' \123\ For example, we 
identified activities that would be covered by the terms ``extraction'' 
and ``export,'' and we provided examples of the activities that would 
be covered by the term ``processing.'' \124\
---------------------------------------------------------------------------

    \122\ See Proposing Release, at Section II.B.
    \123\ Id.
    \124\ Id. See also Section II.B.1.3 below for a discussion of 
this guidance.
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
a. Scope of the Definition
    In the Proposing Release we solicited comment on how we should 
define ``commercial development of oil, natural gas, or minerals.'' For 
example, we asked whether the definition should include any activities 
that were not expressly identified in the statute and what definition 
would further the U.S. Government's foreign policy objective of 
battling corruption through improved transparency. In light of the 
Commission's general exemptive authority, we solicited comment on 
whether certain activities listed in the statute should be excluded 
from the definition. We also sought input on whether activities that 
are ancillary or preparatory to resource extraction should be included 
in the activities covered by the rules and whether the Commission 
should provide additional guidance on the types of activities that 
would be considered ``directly related'' to the ``commercial 
development of oil, natural gas, or minerals.''
    All but one of the commenters that addressed this aspect of the 
Proposing Release supported the proposed definition,\125\ stating that 
it was consistent with established international transparency 
standards.\126\ An industry commenter disputed that view, but otherwise 
generally supported the proposed definition.\127\ The Department of 
Interior also supported the definition despite noting that the USEITI 
does not cover revenues from processing, exporting, or the acquisition 
of licenses to engage in those activities.\128\
---------------------------------------------------------------------------

    \125\ See letters from ACEP; Department of Interior; Exxon Mobil 
Corp. (Mar. 8, 2016) (``ExxonMobil 2''); Global Witness 1; Oxfam 1; 
and PWYP-US 1. One commenter, Encana Corporation, did not expressly 
support or object to our definition of commercial development of 
oil, natural gas, or minerals, but rather requested that the 
Commission provide additional guidance ``to clarify the activities 
covered by the proposed terms used to define `commercial development 
of oil, natural gas, or minerals.' '' See letter from Encana 
Corporation (Jan. 25, 2016) (``Encana''). Specifically, Encana 
requested guidance that would ``reflect consistency with the 
definition of ``Oil and Gas Producing Activities'' in Rule 4-10 of 
Regulation S-X and ``exclude post-extraction activities such as 
refining, smelting, processing, marketing, distribution, 
transportation, or export.''
    \126\ See, e.g., letter from PWYP-US 1.
    \127\ See letter from ExxonMobil 2.
    \128\ See letter from Department of Interior.
---------------------------------------------------------------------------

b. Guidance on ``Extraction,'' ``Processing,'' and ``Export''
    In the Proposing Release we solicited comment on whether additional 
guidance should be provided on the activities covered by the terms 
``extraction,'' ``processing,'' or ``export'' and whether the proposed 
definitions and guidance were too narrow or too broad. For the term 
``export,'' we specifically asked whether the definition should be 
broadened to include all transportation from one country to another, 
regardless of ownership interest or whether the resource originated in 
the country from which it is being transported.
    Several commenters supported the proposed definition of 
``extraction'' and the proposed guidance on ``processing.'' \129\ 
Certain commenters, however, recommended providing additional guidance 
on ``processing.'' \130\

[[Page 49369]]

For example, one commenter requested clarification that ``processing'' 
only includes ``initial processing activities that are integrated with 
extraction operations'' and ``does not extend to ancillary or 
preparatory activities such as manufacturing equipment or construction 
of extraction sites.'' \131\ Another commenter requested additional 
guidance on the scope of ``midstream'' activities that would be covered 
by ``processing.'' \132\
---------------------------------------------------------------------------

    \129\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \130\ See letters from Encana and Petr[oacute]leo Brasileiro 
S.A. (Feb. 16, 2016) (``Petrobras'').
    \131\ See letter from Encana.
    \132\ See letter from Petrobras.
---------------------------------------------------------------------------

    As for the definition of ``export,'' one commenter requested 
clarification on whether that term covers commodity trading-related 
activities and situations such as when an issuer exports oil, natural 
gas, or minerals purchased from a government or from a state-owned 
company.\133\ Another commenter requested clarification of the term 
``mineral,'' stating that it could have a variety of meanings, such as 
homogeneous crystalline substances (which would exclude gravel or non-
crystalline rocks) or naturally occurring inorganic solids (which would 
exclude coa1).\134\
---------------------------------------------------------------------------

    \133\ See letter from Poretti.
    \134\ See letter from Keith Bishop (Jan. 5, 2016) (``Bishop'').
---------------------------------------------------------------------------

3. Final Rules
    We are adopting the proposed definition of ``commercial development 
of oil, natural gas, or minerals'' but with additional guidance on its 
application. Although commenters pointed out that both the statutory 
definition and the proposed definition are broader than the activities 
typically covered by the EITI \135\ and, in some respects, other 
comparable disclosure regimes,\136\ most commenters supported the 
proposal.
---------------------------------------------------------------------------

    \135\ An EITI plan typically covers the ``upstream activities'' 
of exploration and production but not ``downstream activities,'' 
such as processing or export. The relevant multi-stakeholder group 
does, however, have the option of expanding the scope of its EITI 
program by including some downstream activities. See the EITI 
Handbook, at 35.
    \136\ For example, as discussed in Section I.C.1-2 above, 
processing, export, and the acquisition of licenses are not 
specifically mentioned by the EU Directives, and ESTMA generally 
does not include processing or export.
---------------------------------------------------------------------------

    Despite one commenter's recommendation that the final rules exclude 
``processing'' and ``export,'' both terms are expressly included in the 
statutory definition, and we believe that these are important aspects 
of the commercial development of oil, natural gas, or minerals.\137\ 
Although there are differences between the definition we are adopting 
today and that used in other transparency regimes, we believe our 
approach enhances international transparency by covering activities 
similar to those covered by the EU Directives, Canada's ESTMA, and the 
EITI, while remaining consistent with Section 13(q).\138\ In this 
regard, the final rules focus only on issuers engaged in the extraction 
or production of oil, natural gas, or minerals. Where a service 
provider makes a payment to a government on behalf of a resource 
extraction issuer that meets the definition of ``payment,'' the 
resource extraction issuer will be required to disclose such payment.
---------------------------------------------------------------------------

    \137\ See letter from Encana. In light of the statutory 
definition and the purpose of Section 13(q), we are not narrowing 
the definition of ``commercial development'' to make it consistent 
with the definition of ``Oil and Gas Producing Activities'' in Rule 
4-10 of Regulation S-X. The definition of ``Oil and Gas Producing 
Activities'' in Rule 4-10 of Regulation S-X excludes all natural 
resources other than oil and gas. Using that definition would 
exclude minerals and be contrary to the plain language of Section 
13(q). Moreover, narrowing the definition in that manner would limit 
the level of transparency provided by the final rules and would be 
significantly different from the approach taken in the EU 
Directives, ESTMA, and the EITI. In the 2012 Adopting Release we 
took the same approach in response to similar suggestions from 
commenters. See 2012 Adopting Release, Section II.C.3
    \138\ The EU Directives cover ``exploration, prospection, 
discovery, development, and extraction of minerals, oil, natural gas 
deposits or other materials.'' See, e.g., EU Accounting Directive, 
Art. 41(1). ESTMA defines ``commercial development of oil, gas or 
minerals'' as ``(a) the exploration or extraction of oil, gas or 
minerals; (b) the acquisition or holding of a permit, licence, lease 
or any other authorization to carry out any of the activities 
referred to in paragraph (a); or (c) any other prescribed activities 
in relation to oil, gas or minerals.''
---------------------------------------------------------------------------

    Although we are adopting the general definition of ``commercial 
development of oil, natural gas, or minerals'' as proposed, as well as 
reiterating much of the related guidance, we are revising certain key 
terms found in that definition in response to commenters' concerns. We 
note, however, that whether an issuer is a resource extraction issuer 
ultimately depends on the specific facts and circumstances. We are 
adopting the definition of ``extraction'' as proposed. Thus, 
``extraction'' means the production of oil and natural gas as well as 
the extraction of minerals.\139\ Also as proposed, ``processing'' 
includes, but is not limited to, midstream activities such as the 
processing of gas to remove liquid hydrocarbons, the removal of 
impurities from natural gas prior to its transport through a pipeline, 
and the upgrading of bitumen and heavy oil, through the earlier of the 
point at which oil, gas, or gas liquids (natural or synthetic) are 
either sold to an unrelated third party or delivered to a main 
pipeline, a common carrier, or a marine terminal. It also includes the 
crushing and processing of raw ore prior to the smelting phase.\140\ 
``Processing'' does not include downstream activities, such as refining 
or smelting. As we noted in the Proposing Release, the focus of the 
disclosures required by Section 13(q) is on transparency in connection 
with the payments that resource extraction issuers make to governments. 
Those payments are primarily generated by ``upstream'' activities like 
exploration and extraction and not in connection with refining or 
smelting.\141\ Finally, we note that including refining or smelting 
within the rules under Section 13(q) would go beyond what is 
contemplated by the statute, EITI, EU Directives, and ESTMA.\142\
---------------------------------------------------------------------------

    \139\ Proposed Item 2.01(c)(5) of Form SD.
    \140\ See proposed Instruction 7 to Item 2.01 of Form SD.
    \141\ We also noted in the Proposing Release that in other 
contexts Congress has treated midstream activities like 
``processing'' and downstream activities like ``refining'' as 
separate activities, which further supports our view that Congress 
did not intend to include ``refining'' and ``smelting'' as 
``processing'' activities. For example, the Sudan Accountability and 
Divestment Act of 2007 (``SADA''), which also relates to resource 
extraction activities, specifically includes ``processing'' and 
``refining'' as two distinct activities in its list of ``mineral 
extraction activities'' and ``oil-related activities . . .'' See 110 
P.L. No. 174 (2007). Similarly, the Commission's oil and gas 
disclosure rules exclude refining and processing from the definition 
of ``oil and gas producing activities'' (other than field processing 
of gas to extract liquid hydrocarbons by the company and the 
upgrading of natural resources extracted by the company other than 
oil or gas into synthetic oil or gas). See Rule 4-10(a)(16)(ii) of 
Regulation S-X [17 CFR 210.4-10(a)(16)(ii)] and 2012 Adopting 
Release, n. 108.
    \142\ See, e.g., the EITI Handbook, at 35; EU Accounting 
Directive, Art. 41(1) (including ``exploration, prospection, 
discovery, development, and extraction'' in the definition of an 
``undertaking active in the extractive industry,'' but not including 
refining or smelting). See also ESTMA Guidance at Section 1 
(``Commercial development generally does not include post-extraction 
activities. Refining, smelting or processing of oil, gas or 
minerals, as well as the marketing, distribution, transportation or 
export, is generally not captured as commercial development for the 
purposes of the Act. However, certain initial processing activities 
are often integrated with extraction operations and may comprise 
commercial development of oil, gas or minerals.'')
---------------------------------------------------------------------------

    The final rules define ``export'' as the transportation of a 
resource from its country of origin to another country by an issuer 
with an ownership interest in the resource, with certain exceptions 
described below.\143\ This definition of the term ``export'' reflects 
the significance of the relationship between upstream activities such 
as exploration and extraction and the categories of payments to 
governments identified in the statute. In contrast, we do not believe 
that Section 13(q) was intended to capture payments related to 
transportation on a fee-for-service basis

[[Page 49370]]

across an international border by a service provider with no ownership 
interest in the resource.\144\ Nor do we believe that ``export'' was 
intended to capture activities with little relationship to upstream or 
midstream activities, such as commodity trading-related activities. 
Accordingly, the definition of ``export'' we are adopting does not 
cover the movement of a resource across an international border by a 
company that (a) is not engaged in the exploration, extraction, or 
processing of oil, natural gas, or minerals and (b) acquired its 
ownership interest in the resource directly or indirectly from a 
foreign government or the Federal Government.\145\ The definition does 
cover, however, the purchase of such government-owned resources by a 
company otherwise engaged in resource extraction due to the stronger 
link between the movement of the resource across an international 
border and the upstream development activities. This link would be 
particularly strong in instances where the company is repurchasing 
government production entitlements that were originally extracted by 
that issuer.\146\
---------------------------------------------------------------------------

    \143\ See Item 2.01(d)(4) of Form SD.
    \144\ It is noteworthy that Section 13(q) includes export, but 
not transportation, in the list of covered activities. In contrast, 
SADA specifically includes ``transporting'' in the definition of 
``oil and gas activities'' and ``mineral extraction activities.'' 
The inclusion of ``transporting'' in SADA, in contrast to the 
language of Section 13(q), suggests that the term export means 
something different than transportation.
    \145\ See Item 2.01(d)(4) of Form SD. See also letter from 
Poretti (seeking clarification of the scope of ``export'' under the 
rules).
    \146\ See Section C below for a more detailed discussion of when 
and how such payments must be reported.
---------------------------------------------------------------------------

    Contrary to the recommendation of one commenter, we have not 
defined ``minerals'' in the final rules.\147\ Although ESTMA defines 
minerals as ``all naturally occurring metallic and non-metallic 
minerals, including coal, salt, quarry and pit material, and all rare 
and precious minerals and metals,'' the EU Directives do not provide a 
definition.\148\ We believe that this term is commonly understood in 
the industry,\149\ as are the terms ``oil'' and ``natural gas,'' and is 
not ``indefinite'' as claimed by this commenter.\150\ We also believe 
that the commonly understood meaning of ``mineral'' is consistent with 
the definition of that term in ESTMA described above.
---------------------------------------------------------------------------

    \147\ See letter from Bishop.
    \148\ ESTMA, Section 2.
    \149\ In this regard, we note that none of the industry 
commenters, or for that matter any commenters other than Bishop, 
indicated a need to define this term. We believe that this also 
supports our view that, as commonly used when referring to mineral 
resources, ``mineral'' refers to the broader, non-technical meaning, 
which is any organic or inorganic natural resource extracted from 
the earth for human use.
    \150\ We do note, however, that we consider the commonly 
understood meaning of ``mineral'' to include, at a minimum, any 
solid material for which an issuer with mining operations would 
provide disclosure under the Commission's existing disclosure 
requirements and policies, including Industry Guide 7, or any 
successor requirements or policies. The Commission's staff has 
previously provided similar guidance. See Disclosure of Payments by 
Resource Extraction Issuers FAQ 3 (May 30, 2013), available at 
https://www.sec.gov/divisions/corpfin/guidance/resourceextraction-faq.htm.
---------------------------------------------------------------------------

    The definition of ``commercial development of oil, natural gas, or 
minerals'' in the final rules does not capture activities that are 
ancillary or preparatory to such commercial development.\151\ We do not 
consider an issuer that is only providing products or services that 
support the exploration, extraction, processing, or export of such 
resources to be a ``resource extraction issuer,'' such as an issuer 
that manufactures drill bits or provides hardware to help companies 
explore and extract.\152\ Similarly, an issuer engaged by an operator 
to provide hydraulic fracturing or drilling services, thus enabling the 
operator to extract resources, is not a resource extraction issuer. 
Nevertheless, a resource extraction issuer must disclose payments when 
a service provider makes a payment to a government on its behalf that 
meets the definition of ``payment'' in the final rules.\153\
---------------------------------------------------------------------------

    \151\ This is consistent with Canada's ESTMA. See ESTMA Guidance 
at Section 1 (``Commercial development is not intended to extend to 
ancillary or preparatory activities for the exploration or 
extraction of oil, gas or minerals. For example, activities such as 
manufacturing equipment or construction of extraction sites would 
not be included.'')
    \152\ Marketing activities would also not be included. Section 
13(q) does not include marketing in the list of activities covered 
by the definition of ``commercial development.'' In addition, 
including marketing activities within the final rules under Section 
13(q) would go beyond what is covered by the EITI and other 
international regimes. See, e.g., the EITI Handbook, at 35. For 
similar reasons, the definition of ``commercial development'' does 
not include activities relating to security support. See 2012 
Adopting Release at Section II.D for a related discussion of 
payments for security support.
    \153\ As we discuss in Section II.I.3 below, we are providing 
for delayed reporting for payments related to exploratory 
activities. See Item 2.01(b) of Form SD.
---------------------------------------------------------------------------

C. Definition of ``Payment''

1. Proposed Rules
    Section 13(q) defines ``payment'' to mean a payment that:
     Is made to further the commercial development of oil, 
natural gas, or minerals;
     is not de minimis; and
     includes taxes, royalties, fees (including license fees), 
production entitlements, bonuses, and other material benefits, that the 
Commission, consistent with the EITI's guidelines (to the extent 
practicable), determines are part of the commonly recognized revenue 
stream for the commercial development of oil, natural gas, or minerals.
    The proposed definition of ``payment'' included the specific types 
of payments identified in the statute, as well as payments of certain 
dividends and infrastructure payments.
    Consistent with Section 13(q), the proposed rules required a 
resource extraction issuer to disclose taxes. In addition, the proposed 
rules included an instruction stating that a resource extraction issuer 
would be required to disclose payments for taxes levied on corporate 
profits, corporate income, and production, but would not be required to 
disclose payments for taxes levied on consumption, such as value added 
taxes, personal income taxes, or sales taxes.\154\ In response to 
earlier concerns expressed about the difficulty of allocating certain 
payments that are made for obligations levied at the entity level, such 
as corporate taxes, to the project level,\155\ the proposed rules 
provided that issuers could disclose those payments at the entity 
level.\156\
---------------------------------------------------------------------------

    \154\ See proposed Instruction 8 to Item 2.01 of Form SD.
    \155\ See 2012 Adopting Release, n.155 and accompanying text.
    \156\ See proposed Instruction 4 to Item 2.01 of Form SD.
---------------------------------------------------------------------------

    Also consistent with Section 13(q), the proposed rules required a 
resource extraction issuer to disclose fees, including license fees, 
and bonuses paid to further the commercial development of oil, natural 
gas, or minerals. The proposed rules included an instruction stating 
that fees include rental fees, entry fees, and concession fees, and 
that bonuses include signature, discovery, and production bonuses.\157\ 
The fees and bonuses identified, however, were not an exclusive list, 
and under the proposed rules, the issuer could have been required to 
disclose other fees and bonuses as well.
---------------------------------------------------------------------------

    \157\ See proposed Instruction 9 to Item 2.01 of Form SD.
---------------------------------------------------------------------------

    For payments of dividends, which, along with infrastructure 
payments, is not specified in the statute, an instruction in the 
proposed rules stated that an issuer generally would not need to 
disclose dividends paid to a government as a common or ordinary 
shareholder of the issuer as long as the dividend is paid to the 
government under the same terms as other shareholders.\158\ Under the 
proposed

[[Page 49371]]

rules, the issuer would, however, have been required to disclose any 
dividends paid to a government in lieu of production entitlements or 
royalties. Under the proposed approach, ordinary dividend payments were 
not considered part of the commonly recognized revenue stream, because 
they are not made to further the commercial development of oil, natural 
gas, or minerals.\159\ We also proposed requiring a resource extraction 
issuer to disclose in-kind payments.\160\ The proposed rules specified 
that an issuer must report in-kind payments at cost, or if cost was not 
determinable, fair market value, and required the issuer to provide a 
brief description of how the monetary value was calculated.\161\
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    \158\ See proposed Instruction 10 to Item 2.01 of Form SD.
    \159\ See Proposing Release, at Section II.C.1.
    \160\ See proposed Instruction 11 to Item 2.01 of Form SD.
    \161\ See proposed Instruction 11 to Item 2.01 of Form SD. See 
also Section 3(e) of ESTMA (``[T]he value of a payment in kind is 
the cost to the entity--or, if the cost cannot be determined, the 
fair market value--of the goods and services that it provided.''). 
The EU Directives do not specify how in-kind payments should be 
calculated, but require ``supporting notes . . . to explain how 
their value has been determined.'' See, e.g., Section 43(3) of the 
EU Accounting Directive.
---------------------------------------------------------------------------

    The proposed rules defined a ``not de minimis'' payment as one that 
equals or exceeds $100,000, or its equivalent in the issuer's reporting 
currency, whether made as a single payment or series of related 
payments.\162\ Finally, the proposed rules required disclosure of 
activities or payments that, although not within the categories 
included in the proposed rules, are part of a plan or scheme to evade 
the disclosure requirements under Section 13(q).\163\
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    \162\ See proposed Item 2.01(c)(8)(ii) of Form SD. For example, 
a resource extraction issuer that paid a $150,000 signature bonus 
would be required to disclose that payment. The proposed definition 
also clarified that disclosure would be required for related 
periodic payments (e.g., rental fees) when the aggregate amount of 
such payments exceeds the payment threshold. This is similar to 
other instructions in our rules requiring disclosure of a series of 
payments. See, e.g., Instructions 2 and 3 to Item 404(a) of 
Regulation S-K (17 CFR 229.404(a)). Therefore, under the proposed 
rules, a resource extraction issuer obligated to pay royalties to a 
government annually and that paid $10,000 in royalties on a monthly 
basis to satisfy its obligation would be required to disclose 
$120,000 in royalties.
    \163\ See proposed Rule 13q-1(b).
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
a. Types of Payments
    In the Proposing Release we solicited comment on whether we should 
add other payment types, such as CSR payments, or remove certain 
payment types from the proposed list. In particular, we asked whether 
other types of payments should be considered part of the commonly 
recognized revenue stream for the commercial development of oil, 
natural gas, or minerals. We also asked whether the Commission should 
provide additional guidance on how to interpret the proposed list of 
covered payment types, particularly whether additional guidance should 
be provided on the types of fees or bonuses that would be covered by 
the rules and how to distinguish CSR payments from infrastructure 
payments. Finally, we also included a request for comment on whether 
the rules should prescribe a specific method for determining the fair 
market value of in-kind payments.
    Several commenters supported the proposed definition of 
``payment,'' \164\ while others recommended adding additional payment 
types or changing our approach to particular payment types. A number of 
commenters, including one industry commenter, recommended adding CSR 
payments to the definition.\165\ These commenters stated that CSR 
payments are common in the industry and should be considered part of 
the commonly recognized revenue stream for resource extraction.\166\ 
One of these commenters also questioned the characterization in the 
Proposing Release that the European Union and Canada are consistent in 
not requiring CSR payments.\167\ An industry commenter was particularly 
concerned with distinguishing between CSR payments and infrastructure 
payments and recommended requiring both types of payments when required 
by contract with the host government.\168\ Another industry commenter, 
however, opposed including CSR payments, stating that those payments 
were not part of the commonly recognized revenue stream due to their 
``philanthropic or voluntary . . . nature.'' \169\
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    \164\ See letters from ACEP; Encana; Department of Interior; 
Global Witness 1; Oxfam 1; PWYP-US 1; and USAID.
    \165\ See letters from ACEP; Prof. Harry G. Broadman and Bruce 
H. Searby (Jan. 25, 2016) (``Broadman & Searby''); Exxon Mobil Corp. 
(Feb. 16, 2016) (``ExxonMobil 1''); Eugen Falik (Mar. 7, 2016) 
(``Falik''); Global Witness 1; Oxfam 1; PWYP-US 1; and USAID.
    \166\ See, e.g., Broadman & Searby and ExxonMobil 1.
    \167\ See Broadman & Searby (stating that ``there is no 
consistency after all between Europe's and Canada's regimes to which 
the Commission should adhere for the sake of equalizing standards 
and reporting burdens.''). See note 212 below and accompanying text.
    \168\ See letter from ExxonMobil 1.
    \169\ See letter from Encana.
---------------------------------------------------------------------------

    Several commenters recommended adding commodity trading-related 
payments to the definition of ``payment.'' \170\ These commenters 
stated that purchases of resources sold by a government or a state-
owned company are prone to corruption and are part of the commonly 
recognized revenue stream for the commercial development of oil, 
natural gas, or minerals. They also stated that in many countries 
commodity trading-related payments constitute the largest revenue 
stream to the government. Another commenter expressed uncertainty as to 
whether such payments were covered by the proposed rules and noted that 
confusion may arise for others as well since the current EITI Standard 
leaves it to the discretion of a country's multi-stakeholder group 
whether to require the reporting of payments to governments for the 
purchase of natural resources by buying companies.\171\ Other 
commenters stated that covering commodity trading-related payments 
would inappropriately expand the reach of the rules beyond payments 
associated with in-country extractive development and would 
substantially increase the cost of reporting without apparent 
benefit.\172\ These commenters stated that such an approach would 
double-count government revenues given that the government's share of 
production is already required to be disclosed under the rules.
---------------------------------------------------------------------------

    \170\ See letters from PWYP-US 1; NRGI 1. See also letters from 
ACEP; Global Witness 1; and Oxfam 1.
    \171\ See letter from Poretti (noting that some EITI reports 
(e.g., Iraq's EITI Reports for the years 2011, 2012, and 2013) 
contain information about payments reported by buyers of exported 
crude oil).
    \172\ See letters from API (Mar. 8, 2016) (``API 2'') and 
ExxonMobil 2.
---------------------------------------------------------------------------

    Beyond CSR payments and commodity trading-related payments, 
commenters recommended that the rules cover other types of payments, 
such as when an issuer covers government expenses, provides jobs to 
persons related to government officials, or invests in companies 
created by officials or related persons.\173\ For example, one 
commenter recommended that guidance be added to either the discussion 
of reportable payments or the proposed anti-evasion provision 
indicating that payments in excess of the de minimis threshold should 
be disclosed if: (1) The payments were subtracted from or substituted 
for otherwise reportable payments; (2) the payments were requested by 
or associated with a government official suspected of corruption; or 
(3) the payments raise corruption concerns, including by creating an 
appearance of possible corruption, and those payments would otherwise 
be undisclosed to the public.\174\ Another commenter recommended 
including fines and

[[Page 49372]]

penalties in the definition.\175\ This commenter also stated that the 
EITI standard requires ``any other significant payments and material 
benefit to government'' to be reported and that the USEITI's multi-
stakeholder group has interpreted that to include penalties.\176\ This 
commenter noted that fines and penalties represent significant payments 
to governments and that Section 13(q) instructs the Commission to 
define payment consistently with the EITI standard.
---------------------------------------------------------------------------

    \173\ See letters from Bean and USAID.
    \174\ See letter from Bean.
    \175\ See letter from TI-USA.
    \176\ Section 4.1(b) of EITI Standard.
---------------------------------------------------------------------------

    Commenters supported the proposed requirement for issuers to 
disclose the method they used to calculate the value of in-kind 
payments.\177\ One commenter recommend that in-kind payments be 
reported at cost or fair market value, as determined by the issuer, 
rather than allowing only the use of fair market value if cost is not 
determinable.\178\ This commenter also noted that, under ESTMA, in-kind 
payments are reported at the cash value of the production entitlements 
that the payee takes possession of during the relevant financial 
period. Several other commenters supported requiring issuers to 
disclose the volume of resources associated with the in-kind 
payments.\179\ These commenters noted that the EU Directives require 
disclosure of volume and that such a requirement would enhance 
government accountability and understanding of an issuer's 
methodology.\180\ Another commenter, however, stated that adding a 
requirement for issuers to report the volume of in-kind payments is 
unnecessary and could cause competitive harm by effectively disclosing 
contractual selling prices.\181\ This commenter stated that reporting 
fair market value of in-kind payment types was sufficient.\182\ Another 
commenter requested that the Commission provide examples for 
determining fair market value for in-kind payments.\183\
---------------------------------------------------------------------------

    \177\ See letters from Encana and PWYP-US 1. See also letters 
from ACEP; Global Witness 1; and Oxfam 1.
    \178\ See letter from Encana.
    \179\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \180\ See EU Accounting Directive, Art. 43(3) (``Where payments 
in kind are made to a government, they shall be reported in value 
and, where applicable, in volume.'')
    \181\ See letter from ExxonMobil 2.
    \182\ Although ExxonMobil only mentions using fair market value 
and not cost, from the context it does not appear to be recommending 
a change to our proposed approach that calls for cost reporting, or 
if cost is not determinable, fair market value.
    \183\ See letter from Petrobras.
---------------------------------------------------------------------------

    A number of commenters also requested additional guidance on the 
types of payments covered by the rules.\184\ Several commenters 
supported including a non-exclusive list of the types of royalties in a 
manner similar to what was proposed for fees and bonuses.\185\ The 
recommended instruction would further clarify that the examples of 
fees, bonuses, and royalties are non-exclusive and the list of 
royalties would include unit based, value-based, and profit-based 
royalties. One commenter requested additional guidance on how to 
isolate the corporate income tax payments made on income generated from 
the commercial development of oil, natural gas, or minerals given that 
income earned from business activities beyond resource extraction would 
be taxed as well.\186\ Another commenter recommended clarifying in Form 
SD that payments may be reported either on a cash basis or on an 
accrual basis.\187\ This commenter noted the contrast between the 
Proposing Release, which seems to leave open the question as to whether 
an issuer may elect to present payments on either basis, and prior 
staff guidance, which indicates that payment information is required to 
be presented on an unaudited, cash basis for the year in which the 
payments are made.\188\
---------------------------------------------------------------------------

    \184\ See letters from Encana; ExxonMobil 1; Petrobras; and 
PWYP-US 1. See also letters from ACEP; Global Witness 1; and Oxfam 
1.
    \185\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \186\ See letter from Petrobras.
    \187\ See letter from Cleary.
    \188\ See Dodd-Frank Wall Street Reform and Consumer Protect Act 
FAQs: Disclosure of Payments by Resource Extraction Issuers (May 30, 
2013) (``Resource Extraction FAQs''), FAQ 7, available at https://www.sec.gov/divisions/corpfin/guidance/faq.htm.
---------------------------------------------------------------------------

b. The ``Not De Minimis'' Requirement
    A key component of the definition of ``payment'' is how ``not de 
minimis'' should be defined. In the Proposing Release, we solicited 
comment on various aspects of this definition. For example, we 
requested comment on whether a $100,000 threshold is too low or too 
high, whether a different threshold should apply to smaller reporting 
companies or other categories of issuers, and whether we should provide 
additional guidance on how and when an issuer would have to aggregate a 
series of related payments. If commenters thought a different threshold 
should apply, we asked for their input on how that threshold would 
interact with the thresholds established by other countries. We also 
asked whether the final rules should include a mechanism to adjust 
periodically the de minimis threshold to reflect the effects of 
inflation.
    Most commenters supported the proposed definition of ``not de 
minimis.'' \189\ For example, the Department of Interior noted that it 
was the same standard that is used in its disclosure of revenue 
data.\190\ It also recommended not including an automatic adjustment 
mechanism because a stable threshold would allow the USEITI and 
industry to plan better for making ongoing disclosures. Several 
commenters also noted the similarity of the proposed threshold to those 
used in the European Union and Canada.\191\ Another commenter stated 
that the threshold was ``unreasonably low for companies working on 
massive scale projects'' and would thus be too costly.\192\ Finally, 
one commenter requested clarification on whether the de minimis 
threshold is meant to be calculated based on the currency conversion in 
effect at the time of payment, or at the end of the period covered by 
the report.\193\
---------------------------------------------------------------------------

    \189\ See letters from Department of Interior; Form Letter A; 
PWYP-US 1; and Quinones. See also letters from ACEP; Global Witness 
1; and Oxfam 1.
    \190\ See letter from Department of Interior.
    \191\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \192\ See letter from Nouveau (Feb. 16, 2016) (``Nouveau'').
    \193\ See letter from Bishop.
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c. Anti-Evasion Provision
    In the Proposing Release we also solicited comment on whether the 
proposed anti-evasion provision would promote compliance with the 
disclosure requirements and whether we should provide additional 
guidance on when the anti-evasion provision would apply. Several 
commenters supported this provision.\194\ As described above, one 
commenter recommended that guidance be added to either the discussion 
of reportable payments or the proposed anti-evasion provision 
indicating that payments in excess of the de minimis threshold should 
be disclosed if: (1) The payments were subtracted from or substituted 
for otherwise reportable payments; (2) the payments were requested by 
or associated with a government official suspected of corruption; or 
(3) the payments raise corruption concerns, including by creating an 
appearance of possible corruption, and those payments would otherwise 
be undisclosed to the public.\195\ Several other commenters endorsed 
the proposed anti-evasion provision, but recommended adding language 
stating that ``activities and payments must not be artificially

[[Page 49373]]

structured, split or aggregated to avoid application of the rules.'' 
\196\
---------------------------------------------------------------------------

    \194\ See letters from Bean; PWYP-US 1; Sen. Cardin et al.; and 
Sen. Lugar et al. See also letters from ACEP; Global Witness 1; and 
Oxfam 1.
    \195\ See letter from Bean.
    \196\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
---------------------------------------------------------------------------

3. Final Rules
    We are adopting the proposed definition of ``payment'' with certain 
changes to the rule and related guidance. The definition we are 
adopting includes the specific types of payments identified in the 
statute as well as CSR payments that are required by law or contract, 
payments of certain dividends, and payments for infrastructure. As we 
noted in the Proposing Release, the statute and the EITI guidelines 
include most of the types of payments included in the definition.\197\ 
Most of the components of our definition of ``payment'' are also used 
in the EU Directives and ESTMA. Thus, including them is consistent with 
the statutory directive for our rules to support international 
transparency promotion efforts.
---------------------------------------------------------------------------

    \197\ See EITI Standard, at 23.
---------------------------------------------------------------------------

    In addition to the types of payments expressly included in the 
definition of payment in the statute, Section 13(q) provides that the 
Commission include within the definition ``other material benefits'' 
that it determines are ``part of the commonly recognized revenue stream 
for the commercial development of oil, natural gas, or minerals.'' 
According to Section 13(q), these ``other material benefits'' must be 
consistent with the EITI's guidelines ``to the extent practicable.'' 
\198\ The other material benefits we have included in the final rules--
CSR payments required by law or contract, dividends, and infrastructure 
payments--are all found in the EITI guidelines as well.\199\
---------------------------------------------------------------------------

    \198\ 15 U.S.C. 78m(q)(1)(C)(ii).
    \199\ See the EITI Standard at Sections 4.1(b) (dividends), 4.3 
(infrastructure payments), and 6.1 (social expenditures).
---------------------------------------------------------------------------

    Unlike with the 2012 Proposing Release, none of the commenters on 
the Proposing Release suggested a broad, non-exhaustive list of payment 
types or a category of ``other material benefits.'' In light of this, 
and because we continue to believe that Section 13(q) directs us to 
make an affirmative determination that the other ``material benefits'' 
are part of the commonly recognized revenue stream, we are not adopting 
such a non-exclusive list or category. Accordingly, under the final 
rules, resource extraction issuers will be required to disclose only 
those payments that fall within the specified list of payment types in 
the rules.
    We have determined that the payment types specified in the rules 
represent material benefits that are part of the commonly recognized 
revenue stream and that otherwise meet the definition of ``payment.'' 
In support of this determination, we note that the EU Directives and 
ESTMA also require most of these payment types to be disclosed.\200\ In 
this regard, we also looked to the EITI and determined that it would be 
appropriate to add some of the types of payments included under the 
EITI that are not explicitly mentioned under Section 13(q). As such, 
the final rules require disclosure of CSR payments that are required by 
law or contract, dividend, and infrastructure payments. We note that 
none of the commenters on the Proposing Release objected to the 
inclusion of dividend and infrastructure payment, while views were 
mixed on CSR payments. We also note that payments for infrastructure 
improvements have been required under the EITI since at least 
2011,\201\ payments for dividends since at least 2005,\202\ and CSR 
payments that are required by law or contract since 2013.\203\
---------------------------------------------------------------------------

    \200\ See, e.g., EU Accounting Directive, Art. 41(5) and Section 
2 of ESTMA (both including, as discussed in Section I.C above, the 
following payment types: Production entitlements, taxes, royalties, 
dividends, bonuses, fees, and infrastructure payments).
    \201\ In February 2011, the EITI Board issued revised EITI rules 
that require participants to develop a process to disclose 
infrastructure payments under an EITI program. See EITI Rules 2011, 
available at http://eiti.org/document/rules. See also EITI 
Requirement 9(f) in EITI Rules 2011, at 22 (``Where agreements based 
on in-kind payments, infrastructure provision or other barter-type 
arrangements play a significant role in the oil, gas or mining 
sectors, the multi-stakeholder group is required to agree [to] a 
mechanism for incorporating benefit streams under these agreements 
in to its EITI reporting process. . . .'') and EITI Standard, at 24 
(``The multi-stakeholder group and the independent administrator are 
required to consider whether there are any agreements, or sets of 
agreements, involving the provision of goods and services, including 
loans, grants and infrastructure works, in full or partial exchange 
for oil, gas or mining exploration or production concessions or 
physical delivery of such commodities. . . Where the 
multistakeholder group concludes that these agreements are material, 
the multistakeholder group and the Independent Administrator are 
required to ensure that the EITI Report addresses these agreements, 
providing a level of detail and transparency commensurate with the 
disclosure and reconciliation of other payments and revenues 
streams.'').
    \202\ See EITI, Source book, Chapter 2, Section D (Mar. 2005).
    \203\ As is currently the case under the 2016 EITI Standard, the 
2013 version of the EITI Standard required social contribution 
payments to be disclosed if the company was legally or contractually 
required to make those payments.
---------------------------------------------------------------------------

    The proposed rules did not require the disclosure of CSR payments. 
We noted in the Proposing Release that other recently enacted 
international transparency promotion efforts, such as the EU Directives 
and ESTMA, do not include CSR payments as a specified covered payment 
type. Although we noted that the EITI includes the disclosure of 
material ``social expenditures'' in an EITI report when those 
expenditures are required by law or contract,\204\ we stated that 
disclosure of CSR payments appeared to be outside of the scope of the 
more recent international efforts in the European Union and 
Canada.\205\ In addition, we noted that there was no clear consensus 
among the commenters on whether the proposed rules should include CSR 
payments as part of identified payments that are required to be 
disclosed.\206\ Nevertheless, we sought public input on the matter.
---------------------------------------------------------------------------

    \204\ See EITI Standard, at 28 (``Where material social 
expenditures by companies are mandated by law or the contract with 
the government that governs the extractive investment, the EITI 
Report must disclose and, where possible, reconcile these 
transactions.'').
    \205\ See EU Accounting Directive, Art. 41(5) and ESTMA, Section 
2, both of which list types of payments covered by their respective 
disclosure regulations without including CSR payments. But see ESTMA 
Guidance, Section 3.5 (outlining that ``payments made for corporate 
social responsibility purposes'' may be required to be disclosed if 
``made in lieu of one of the payment categories that would need to 
be reported under [ESTMA]'').
    \206\ See Proposing Release, n.148 and accompanying text.
---------------------------------------------------------------------------

    Upon further consideration of our approach in the proposed rules 
and taking into account the comments discussed above, we believe that 
CSR payments that are required by law or contract are part of the 
commonly recognized revenue stream for the commercial development of 
oil, natural gas, or minerals.\207\ As noted above, CSR payments that 
are required by law or contract must be disclosed under the EITI. Also, 
as noted by one commenter, ``[p]ublic manifestations of how common in 
[the resource extraction] industry CSR payments have become include 
prolific conferences, studies, guidance, and compliance manuals.'' 
\208\

[[Page 49374]]

Notably, this view was not limited to academia or civil society 
organizations. One industry commenter also stated that CSR payments are 
part of the commonly recognized revenue stream for the commercial 
development of oil, natural gas, or minerals, at least when required by 
law or contract.\209\ Furthermore, there is other evidence supporting 
the significant role that CSR payments have in the extractive 
industries. For example, several EITI implementing countries already 
disclose mandatory or voluntary social expenditures in their EITI 
Reports.\210\ In addition, several issuers already report their 
required or voluntary CSR payments.\211\ We recognize that significant 
disclosure regimes such as the EU Directives and ESTMA do not include 
CSR payments as a specified covered payment type. Nonetheless, we find 
that the evidence on balance supports the conclusion that such payments 
are now part of the commonly recognized revenue stream for the 
commercial development of oil, natural gas, or minerals.\212\
---------------------------------------------------------------------------

    \207\ We note that our decision to require disclosure of such 
payments is further supported by the fact that such payments can be 
used as a mechanism for the corrupt or suspicious diversion of 
payment revenues to governmental officials for their personal use. 
See, e.g., Ken Silverstein, The Secret World of Oil 79 (2014) 
(noting that ``money specifically marked for social programs has 
been stolen'' by the leaders of Equatorial Guinea and quoting a 
court filing by the U.S. Department of Justice that states: ``The 
Inner Circle routinely demands that companies operating in E.G. 
contribute money to what are disguised as public service campaigns 
[to build housing and other social programs. However] the 
contributions are not used for their alleged purpose, but instead 
are largely taken by members of the Inner Circle . . . for their 
personal benefit.'') (bracketed additions were included in The 
Secret World of Oil).
    \208\ See letter from Broadman & Searby (noting publications 
such as IPIECA, Creating Successful, Sustainable Social Investment: 
Guidance document for the oil and gas industry (2008); Alison 
Colwell of BSR, Driving Business and Social Benefits Through 
Inclusive Community Investment (July 2015); Anglo American Corp., 
Socio-Economic Assessment Toolbox, Version 3 (2013); FSG, ``Shared 
Value In Extractives,'' prepared materials for the Next-Gen CSR and 
Shared Value Forum (Feb. 2014); FSG, ``Extracting with Purpose: 
Creating Shared Value in the Oil and Gas Band Mining Sectors' 
Companies and Communities'' (Oct. 2014).
    \209\ See letter from ExxonMobil 1.
    \210\ See EITI Guidance, Note 17 (Apr. 24, 2014) (noting that 
Kazakhstan, Kyrgyzstan, Liberia, Mongolia, Mozambique, Peru, 
Republic of Congo, Togo, Yemen and Zambia require or reconcile 
social expenditures in their EITI reports).
    \211\ See, e.g., Statoil ASA, 2015 Sustainability Report, p. 29 
(disclosing that in 2015 Statoil made NOK 37 million in social 
investments, of which NOK 5 million were contractual obligations); 
Newmont Mining Corporation, Beyond the Mine-Our 2014 Social and 
Environmental Performance (reporting that Newmont invested $28 
million globally ``to support a wide range of community 
investments''); Kosmos Energy Ltd., 2014 Corporate Responsibility 
Report (reporting that Kosmos Energy spent $2,936,000 in social 
investments in 2014); BHP Billiton Ltd., 2015 Sustainability Report 
(reporting that BHP's voluntary community investment totaled $225 
million USD in 2015); and Tullow Oil plc, 2015 Corporate 
Responsibility Report (disclosing that Tullow spent $7,537,000 on 
discretionary social projects in 2015).
    \212\ One commenter questioned our conclusion in the Proposing 
Release that the European Union and Canada were consistent in 
generally not requiring disclosure of CSR payments, particularly 
with respect to Canada. See letter from Broadman & Searby. Although 
Canada does not list CSR payments as a separate payment type, the 
ESTMA Guidance states that ``the onus is on the Reporting Entity to 
determine whether a voluntary or philanthropic payment does in fact 
relate in some way to its commercial development of oil, gas or 
minerals. This may include payments for corporate social 
responsibility purposes.'' In this regard, the guidance also states 
that entities ``should look to the substance, rather than the form, 
of payments in determining which [payment] category is applicable.'' 
ESTMA Guidance, Section 3.5. The ESTMA Guidance further states that 
``payments made for corporate social responsibility purposes'' may 
be required to be disclosed if ``made to a payee in lieu of one of 
the payment categories that would need to be reported under 
[ESTMA].'' Id. Finally, the ESTMA Guidance provides an example of 
how providing a local municipal government with a payment for a 
scholarship endowment and to build a community center should be 
reported under the bonus payment category. Id. at Box A.
---------------------------------------------------------------------------

    We do not believe it is appropriate to add the other payment types 
recommended by some commenters because we have not determined that they 
are material benefits that are part of the commonly recognized revenue 
stream for the commercial development of oil, natural gas, or minerals. 
With respect to commodity trading-related payments, we believe that our 
definition of ``export'' and the categories of payments in the final 
rules, particularly in-kind payments, accurately reflect the commonly 
recognized revenue stream for the commercial development of oil, 
natural gas, or minerals. We acknowledge that significant payments may 
be made by buying/trading companies and others to purchase the 
commodities covered by the final rules. Nevertheless, we do not believe 
that purchasing or trading oil, natural gas, or minerals, even at a 
level above the de minimis threshold, is on its own sufficiently 
related to the ``commercial development'' of those resources to be 
covered by the rules, particularly when the rules already require 
disclosure of in-kind payments of production entitlements. We have, 
however, addressed below how such production entitlements must be 
valued when initially made in-kind but subsequently purchased by the 
same issuer from the recipient government.
    We are also not specifically requiring disclosure of payments for 
government expenses, providing jobs or tuition to persons related to 
government officials, investing in companies created by officials or 
related persons, or other similar payments that could reasonably raise 
corruption concerns. We find it unnecessary to do so because, when 
these payments are made to further the commercial development of oil, 
natural gas or minerals (in connection with or in lieu of the 
identified payments), they will already be covered by the anti-evasion 
provision we are adopting.\213\
---------------------------------------------------------------------------

    \213\ See generally U.S. Senate Permanent Subcommittee on 
Investigations, Committee on Government Affairs, Money Laundering 
and Foreign Corruption: Enforcement and Effectiveness of the Patriot 
Act, Case Study Involving Riggs Bank Report, at 98-111 (July 14, 
2004) (providing examples of the roles that resource extraction 
companies can play in facilitating the suspect or corrupt practices 
of foreign officials seeking to divert resource extraction payments 
that belong to the government).
---------------------------------------------------------------------------

    With respect to payments for fines and penalties, we do not believe 
they relate sufficiently to the commercial development of natural 
resources to warrant inclusion. Although we acknowledge that the USEITI 
multi-stakeholder group has included penalties, we also note that the 
EITI Standard does not address the reporting of penalties or fines. In 
this regard, we understand that actual practice in countries applying 
the EITI Standard appears to vary depending on the particular 
interpretations of a country's multi-stakeholder group.\214\ 
Furthermore, we note that neither the EU Directives nor ESTMA include 
fines or penalties as an explicit payment category.
---------------------------------------------------------------------------

    \214\ Based upon our review of EITI reports published in English 
on the EITI Web site, many of the reports do not report payments of 
fines and penalties.
---------------------------------------------------------------------------

    We are adopting the proposed approach to in-kind payments with one 
modification. In the past, many commenters supported the inclusion of 
in-kind payments, particularly in connection with production 
entitlements and none of the commenters on the Proposing Release 
objected to their inclusion in the rules.\215\ We also note that the EU 
Directives and ESTMA require disclosure of in-kind payments.\216\ In 
addition to production entitlements, in-kind payments could include 
building a road or school, refurbishing a government building, or 
numerous other activities that do not involve providing monetary 
payments to the host country government. Although certain commenters 
recommended allowing issuers to choose between reporting in-kind 
payments at cost or fair market value, we continue to believe that such 
disclosure would be more consistent and comparable if issuers are 
required to report in-kind payments at cost, and are only permitted to 
report using fair market value if historical costs are not reasonably 
available or determinable. We are providing guidance, however, on how 
to report payments made to a foreign government or the Federal 
Government to purchase the resources associated with production 
entitlements that are reported in-kind.\217\ If the issuer must report 
an in-kind production entitlement payment under the rules and then 
repurchases the resources associated with the production

[[Page 49375]]

entitlement within the same fiscal year, the issuer must use the 
purchase price (rather than using the valuation methods described 
above) when reporting the in-kind value of the production entitlement. 
If the in-kind production entitlement payment and the subsequent 
purchase are made in different fiscal years and the purchase price is 
greater than the previously reported value of the in-kind payment, the 
issuer must report the difference in values in the latter fiscal year 
if that amount exceeds the de minimis threshold. In other situations, 
such as when the purchase price in a subsequent fiscal year is less 
than the in-kind value already reported, no disclosure relating to the 
purchase price is required. We believe that this approach more 
accurately captures the value of in-kind payments for production 
entitlements than the proposed approach and addresses commenters 
concerns without adding significantly to the burden of resource 
extraction issuers.
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    \215\ See 2012 Adopting Release, nn.170, 211 and accompanying 
text. In-kind payments include, for example, making a payment to a 
government in oil rather than a monetary payment.
    \216\ Article 41 of the EU Accounting Directive and Section 2 of 
ESTMA specifically include ``in kind'' payments in their definitions 
of ``payment.''
    \217\ See Instruction 11 to Item 2.01 of Form SD.
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    We have also considered whether to require issuers to report the 
volume of in-kind payments. As discussed above, commenters were divided 
on this suggestion.\218\ We generally agree with the commenter that 
stated such information was unnecessary.\219\ Based on these 
considerations, we are not requiring disclosure related to volume. We 
note that issuers are required to provide a brief description of how 
the monetary value was calculated, which will provide some additional 
context for assessing the reasonableness of the disclosure.
---------------------------------------------------------------------------

    \218\ See Section II.C.2 above.
    \219\ See letter from ExxonMobil 2.
---------------------------------------------------------------------------

    We are adopting as proposed an instruction setting forth a non-
exclusive list of fees (rental fees, entry fees, and concession fees) 
and bonuses (signature, discovery, and production bonuses). As 
discussed in the Proposing Release, the EITI specifically mentions 
these types of fees and bonuses as payments that should be disclosed by 
EITI participants.\220\ This supports our view that these types of fees 
and bonuses are part of the commonly recognized revenue stream. As 
recommended by certain commenters, we are also adding a non-exclusive 
list of royalties since we believe that would provide additional 
clarity for issuers.\221\ Thus, the term ``royalties'' would include, 
but not be limited to, unit-based, value-based, and profit-based 
royalties.\222\ Of course, resource extraction issuers may be required 
to disclose other types of fees, bonuses, and royalties depending on 
the particular facts and circumstances.
---------------------------------------------------------------------------

    \220\ See EITI Standard, at 23.
    \221\ See Instruction 9 to Item 2.01 of Form SD. See also letter 
from PWYP-US 1.
    \222\ These types of royalties were recommended by PWYP-US based 
on the following publication: World Bank, Mining Royalties: Their 
Impact on Investors, Government and Civil Society (2006), pp. 50-54, 
available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2006/09/11/000090341_20060911105823/Rendered/PDF/372580Mining0r101OFFICIAL0USE0ONLY1.pdf.
---------------------------------------------------------------------------

    In response to commenters' concerns about compliance costs, we 
noted in the Proposing Release that issuers would not be required to 
have the payment information audited or reported on an accrual 
basis.\223\ As noted above, one commenter questioned whether this was a 
shift from the position taken in prior staff guidance, which indicates 
that issuers are not permitted to provide the payment information on an 
accrual basis.\224\ We have revised Form SD to expressly state that the 
payment information need not be audited and must be made on a cash 
basis. As we discussed in the 2012 Adopting Release, we believe that 
this is the best approach because (1) these payment disclosures are 
largely cash-based, so reporting them on a cash basis will not result 
in a significant compliance burden, and (2) requiring a consistent 
approach will improve comparability and therefore result in greater 
transparency.
---------------------------------------------------------------------------

    \223\ See Section II.G.5 of the Proposing Release.
    \224\ Resource Extraction FAQ 7, available at https://www.sec.gov/divisions/corpfin/guidance/faq.htm.
---------------------------------------------------------------------------

    We are adopting the proposed definition of ``not de minimis'' for 
the reasons stated in the Proposing Release. A ``not de minimis'' 
payment is one that equals or exceeds $100,000, or its equivalent in 
the issuer's reporting currency,\225\ whether made as a single payment 
or series of related payments. We continue to believe that this 
definition provides a clear standard for determining which payments a 
resource extraction issuer must disclose. Furthermore, several 
countries have established payment thresholds that approximate the 
proposed $100,000 standard.\226\ We believe that the establishment of a 
similar payment threshold by these countries diminishes any potential 
additional compliance burden and potential competitive harm that 
otherwise could be caused by disclosure rules that include a payment 
threshold that varies significantly from the standard used in other 
jurisdictions. As discussed above, only one of the many commenters that 
addressed the definition thought that the reporting threshold was too 
low.\227\ Although we acknowledge this commenter's concerns that the 
threshold might be considered low for companies working on ``massive'' 
scale projects, we note that none of the large issuers commenting on 
the Proposing Release expressed similar concerns. For this reason and 
the reasons stated above, we are not increasing the threshold.
---------------------------------------------------------------------------

    \225\ Instruction 2 to Item 2.01 allows an issuer to choose 
several methods to calculate currency conversions for payments not 
made in U.S. dollars or the issuer's reporting currency. We have 
clarified in that instruction that the same methods are available to 
issuers when calculating whether a payment not made in U.S. dollars 
exceeds the de minimis threshold. However, an issuer must use a 
consistent method for such de minimis payment currency conversions 
and must disclose which method it used.
    \226\ See EU Accounting Directive, Art. 43(1) and Recital 46 
(using [euro]100,000, or approximately $112,280 (USD) as of June 16, 
2016); UK Reports on Payments to Governments Regulations 2014 (2014 
Statutory Instrument No. 3209), Part 1, 5.-(3) (using [pound]86,000, 
or approximately $122,180 (USD) as of June 16, 2016); Norwegian 
Regulations, Section 3 (using 800,000 kr, or approximately $95,302 
(USD) as of June 16, 2016); and ESTMA, Section 9(2) (using $100,000 
(CAD), or approximately $77,140 (USD) as of June 16, 2016).
    \227\ See letter from Nouveau. Comments received prior to the 
Proposing Release were divided on whether the threshold should be 
increased or decreased. See Section II.C.2 of the Proposing Release 
for a discussion of those comments.
---------------------------------------------------------------------------

    Finally, despite the changes recommended by commenters, we are 
adopting the anti-evasion provision as proposed. Thus, the final rules 
require disclosure with respect to an activity (or payment) that, 
although not within the categories included in the proposed rules, is 
part of a plan or scheme to evade the disclosure required under Section 
13(q).\228\ This provision is designed and intended to emphasize 
substance over form or characterization and to capture any and all 
payments made for the purpose of evasion. Accordingly, we believe that 
it covers most of the situations that appeared to concern commenters. 
For example, the provision would cover payments that were substituted 
for otherwise reportable payments in an attempt to evade the disclosure 
rules,\229\ as well as activities and payments that were structured, 
split, or aggregated in an attempt to avoid application of the 
rules.\230\ Similarly, as noted in the Proposing Release, a resource 
extraction issuer could not avoid disclosure by re-characterizing an 
activity as transportation that would otherwise be covered under the 
rules, or by making a payment to the government via a third party in 
order to avoid disclosure under the proposed rules.
---------------------------------------------------------------------------

    \228\ See Rule 13q-1(b).
    \229\ See letter from Bean.
    \230\ See, e.g., letter from PWYP-US 1.

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[[Page 49376]]

D. Definition of ``Subsidiary'' and ``Control''

1. Proposed Rules
    In addition to requiring an issuer to disclose its own payments, 
Section 13(q) also requires a resource extraction issuer to disclose 
payments by a subsidiary or an entity under the control of the issuer 
made to a foreign government or the Federal Government relating to the 
commercial development of oil, natural gas, or minerals. The proposed 
rules defined the terms ``subsidiary'' and ``control'' using accounting 
principles rather than other alternatives, such as using the 
definitions of those terms provided in Rule 12b-2.\231\
---------------------------------------------------------------------------

    \231\ Under Exchange Act Rule 12b-2 [17 CFR 240.12b-2], 
``control'' (including the terms ``controlling,'' ``controlled by'' 
and ``under common control with'') is defined to mean ``the 
possession, direct or indirect, of the power to direct or cause the 
direction of the management and policies of a person, whether 
through the ownership of voting shares, by contract, or otherwise.'' 
Rule 12b-2 also defines a ``subsidiary'' of a specified person as 
``an affiliate controlled by such person directly, or indirectly 
through one or more intermediaries.'' See also the definitions of 
``majority-owned subsidiary,'' ``significant subsidiary,'' and 
``totally-held subsidiary'' in Rule 12b-2.
---------------------------------------------------------------------------

    Within the context of the proposed rules, a resource extraction 
issuer would have ``control'' of another entity if the issuer 
consolidated that entity or proportionately consolidated an interest in 
an entity or operation under the accounting principles applicable to 
the financial statements it includes in periodic reports filed pursuant 
to Section 13(a) or 15(d) of the Exchange Act. Thus, for determining 
the eligible payments, or portions thereof, that must be disclosed, the 
resource extraction issuer would follow the consolidation requirements 
under generally accepted accounting principles in the United States 
(``U.S. GAAP'') or under the International Financial Reporting 
Standards as issued by the International Accounting Standards Board 
(``IFRS''), as applicable.\232\ The extent to which the entity making 
the eligibility payment is consolidated would determine the extent to 
which payments made by that entity must be disclosed. For example, a 
resource extraction issuer that proportionately consolidates an 
interest in an entity or an operation would be required to disclose the 
issuer's proportionate amount of that entity's or operation's eligible 
payments indicating the issuer's proportionate interest.
---------------------------------------------------------------------------

    \232\ See Accounting Standards Codification (``ASC'') 810, 
Consolidation, IFRS 10, Consolidated Financial Statements and IFRS 
11, Joint Arrangements for guidance. A foreign private issuer that 
prepares financial statements according to a comprehensive set of 
accounting principles, other than U.S. GAAP or IFRS, and files with 
the Commission a reconciliation to U.S. GAAP would be required to 
determine whether or not an entity is under its control using U.S. 
GAAP.
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on how the term 
``control'' should be defined. For example, we asked whether it was 
preferable to base the definition of ``control'' on applicable 
accounting principles, rather than using Rule 12b-2 of the Exchange 
Act, and whether there would be significant differences between these 
approaches. We also asked whether we should allow resource extraction 
issuers to report eligible payments made by proportionately 
consolidated entities on a proportionate basis. Finally, we solicited 
comment on whether there were any aspects of other international 
transparency initiatives or differences between U.S. GAAP and IFRS that 
we should address so as to promote the comparability of this type of 
disclosure.
    All of the commenters addressing this aspect of the proposal 
generally supported using accounting consolidation principles instead 
of Rule 12b-2.\233\ Several of these commenters, however, stated that 
using accounting principles would be acceptable only if the concept of 
``significant influence'' was used in conjunction with proportional 
consolidation.\234\ These commenters expressed concern that 
proportional consolidation is optional for oil and gas companies under 
U.S. GAAP and is rarely used. They were also concerned that companies 
might structure joint ventures to avoid disclosure. Other commenters 
disagreed with adding a ``significant influence'' concept to the 
definition of control.\235\ For example, one expressed concerns about 
the ability to access payment-level financial information from an 
entity over which it only had ``significant influence.'' \236\ Another 
commenter stated that there was no support for the assertion that joint 
ventures would be structured to avoid disclosure and that any reporting 
gap is inherent to Section 13(q), which applies only to companies 
subject to the Commission's jurisdiction.\237\
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    \233\ See letters from API 1; BP; Chevron Corporation (Feb. 16, 
2016) (``Chevron''); Encana; ExxonMobil 1; Petrobras; PWYP-US 1; and 
Royal Dutch Shell plc (Feb. 5, 2016) (``RDS''). See also letters 
from ACEP; Global Witness; and Oxfam 1.
    \234\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \235\ See letters from API 2 and ExxonMobil 2.
    \236\ See letter from ExxonMobil 2.
    \237\ See letter from API 2.
---------------------------------------------------------------------------

    Several of the commenters that otherwise supported the proposed 
approach had concerns about using proportional consolidation to 
determine control.\238\ These commenters were generally concerned that 
issuers who use proportional consolidation might not have access to the 
required payment information from operators of existing joint ventures. 
These commenters stated that issuers have access only to high-level 
data regarding revenues and costs of the proportionally consolidated 
entities or operations. One of these commenters was concerned that the 
resulting disclosure could be confusing or misleading because there 
will be situations where an issuer has multiple operations with 
different ownership interests that would be both operationally and 
geographically interconnected and therefore would be classified as a 
single project for reporting purposes.\239\ Another recommended 
addressing this issue by clarifying that Rule 12b-21 would permit an 
issuer to exclude information with respect to entities where the issuer 
does not have access to the information required to be disclosed.\240\
---------------------------------------------------------------------------

    \238\ See letters from API 1; BP; Chevron; Encana; ExxonMobil 1; 
Petrobras; and RDS.
    \239\ See letter from ExxonMobil 1.
    \240\ See letter from RDS.
---------------------------------------------------------------------------

    Several of the commenters who had concerns with proportional 
consolidation for determining ``control'' recommended that when the 
payments relate to joint ventures the rules should only require 
disclosure of payments by the operator of the joint venture.\241\ Under 
this recommendation, the operator would report all of the eligible 
payments it makes, rather than its proportional share. A number of 
these commenters indicated that this approach would be more consistent 
with the requirements under the EITI, EU Directives, and ESTMA.\242\ 
One of these commenters recommended specific changes to the rules and 
instructions that it stated would accomplish this purpose and would 
clarify that ``control'' extends down an organizational chain to 
entities controlled by other controlled entities.\243\ Other commenters 
acknowledged that this recommended change to the Commission's proposed 
definition of ``control'' could result in payments not being reported 
when the operator of a joint venture is not subject to the rules, even 
if minority partners in the joint venture are subject to the 
rules.\244\ These commenters stated,

[[Page 49377]]

however, that a similar gap in coverage would exist under the proposed 
definition when a company subject to the rule is the operator in a 
joint venture but the joint venture partners are not subject to the 
reporting requirement. In that situation, these commenters stated that 
the operator would be required to report only its own proportional 
share of the payment made to the host government.
---------------------------------------------------------------------------

    \241\ See letters from API 1; BP; Chevron; Encana; ExxonMobil 1; 
and Petrobras.
    \242\ See letters from API 1; BP; Chevron; Encana; and 
ExxonMobil 1.
    \243\ See letter from Encana.
    \244\ See, e.g., letter from API 2.
---------------------------------------------------------------------------

3. Final Rules
    We are adopting the proposed definitions of ``subsidiary'' and 
``control.'' We continue to believe that using accounting principles to 
determine control, rather than Rule 12b-2, is appropriate in light of 
the significant international developments since the 2012 Rules were 
vacated. Specifically, this approach, although not identical, 
complements two major international transparency regimes, the EU 
Directives and ESTMA, and should therefore support international 
transparency promotion efforts by fostering consistency and 
comparability of disclosed payments.\245\ Also, as noted above, all of 
the commenters that addressed this aspect of the proposed rules 
generally supported using accounting principles to define ``control.''
---------------------------------------------------------------------------

    \245\ See, e.g., EU Accounting Directive, Art. 44 (providing for 
the preparation of consolidated reports, subject to limited 
exceptions). ESTMA provides that ``control'' includes both direct 
and indirect control, but Section 2.1.3 of the ESTMA Guidance states 
that ``[w]here one business controls another enterprise under the 
accounting standards applicable to it . . . that will generally be 
sufficient evidence of control for purposes of the Act.''
---------------------------------------------------------------------------

    We believe that the definition we are adopting today better 
balances transparency for users of the payment disclosure and the 
burden on issuers than the use of the Rule 12b-2 definition of 
``control'' or alternatives recommended by commenters. Issuers already 
apply the concept of control for financial reporting purposes, which 
should facilitate compliance. Assuming a reporting issuer consolidates 
the entity making the eligible payment,\246\ this approach also should 
have the benefit of limiting the potential overlap of the disclosed 
payments because generally, under applicable financial reporting 
principles, only one party can control, and therefore consolidate, that 
entity. Further, this approach may enhance the quality of the reported 
data since each resource extraction issuer is required to provide 
audited financial statement disclosure of its significant consolidation 
accounting policies in the notes to the audited financial statements 
included in its existing Exchange Act annual reports.\247\ The 
disclosure of these accounting policies should provide greater 
transparency about how the issuer determined which entities and 
payments should be included within the scope of the required 
disclosures. Finally, a resource extraction issuer's determination of 
control under the final rules is subject to the audit process as well 
as to the internal accounting controls that issuers are required to 
have in place with respect to reporting audited financial statements 
filed with the Commission.\248\
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    \246\ See below for a discussion of a resource extraction 
issuer's disclosure obligations concerning proportionately 
consolidated entities or operations.
    \247\ See ASC 235-10-50; IFRS 8. See also Rules 1-01, 3-01, and 
4-01 of Regulation S-X [17 CFR 210.1-01, 2-01 and 4-01].
    \248\ See Exchange Act Section 13(b)(2)(B) [15 U.S.C. 
78m(b)(2)(B)]. See also Rules 13a-15 [17 CFR 240.13a-15] and 15d 15 
[17 CFR 240.15d-15]. We note, however, that the proposed rules would 
not create a new auditing requirement.
---------------------------------------------------------------------------

    We considered the recommendation of some commenters to include a 
``significant influence'' test for determining control in addition to 
the accounting consolidation principles we proposed. We do not believe, 
however, that we should define control such that significant influence 
by itself would constitute control.\249\ The concept of significant 
influence does not reflect the same level of ability to direct or 
control the actions of an entity that is generally reflected in the 
concept of consolidation. As such, we believe that the consolidation 
principles are better aligned with the purposes underlying Section 
13(q) than a significant influence test. Moreover, unlike a potential 
significant influence test, the consolidation principles used to define 
control for the purposes of Section 13(q) more closely capture the 
situations where the resource extraction issuer has access to the 
information that is required to be reported.\250\ We also note that the 
European and Canadian reporting regimes do not measure control based on 
``significant influence'' alone. For these reasons, we have chosen not 
to include a significant influence test in the final rules.
---------------------------------------------------------------------------

    \249\ In this regard, we note that under U.S. GAAP and IFRS, 
significant influence alone does not represent a level of control 
that would result in consolidation. See ASC 323-10-15, paragraphs 6 
through 11 and IAS 28, paragraph 3.
    \250\ Compared to an issuer that consolidates an entity, an 
issuer applying proportionate consolidation may not have the same 
level of ability to direct the entity or operations making the 
eligible payments. However, an issuer applying proportionate 
consolidation has a direct or undivided ownership in the assets and 
liabilities of the entity or operations, and the issuer's ability to 
apply proportionate consolidation indicates a higher likelihood that 
it is able to obtain the information necessary to satisfy the 
reporting requirements.
---------------------------------------------------------------------------

    The final rules also require disclosure of the proportionate amount 
of the eligible payments made by a resource extraction issuer's 
proportionately consolidated entities or operations. We believe this 
approach is consistent with using accounting principles to determine 
control because, when proportionate consolidation is applied, an entity 
has an undivided interest in or contractual rights and obligations in 
specified assets, liabilities and operations. Under this approach, the 
proportionate amount of eligible payments reported by the issuer 
reflects the underlying interest in the economics associated with the 
specified assets, liabilities, and operations. Although we acknowledge 
commenters' concerns about the ability of an issuer to obtain 
sufficiently detailed payment information from proportionately 
consolidated entities or operations when it is not the operator of that 
venture, we note that the delayed compliance date in the final rules 
will provide issuers two years to make arrangements with joint venture 
operators to obtain the required payment information. If, after 
reasonable effort, the issuer is unable to obtain such information, it 
would be able to rely on Exchange Act Rule 12b-21 to omit the 
information if the information is unknown and not reasonably 
available.\251\ We expect, however, that for future joint ventures, 
non-operator issuers can and should negotiate for access to the 
appropriate information.
---------------------------------------------------------------------------

    \251\ 17 CFR 240.12b-21. Specifically Rule 12b-21 states that 
information required need be given only insofar as it is known or 
reasonably available to the registrant. If any required information 
is unknown and not reasonably available to the registrant, either 
because the obtaining thereof would involve unreasonable effort or 
expense, or because it rests peculiarly within the knowledge of 
another person not affiliated with the registrant, the information 
may be omitted. The rule goes on to provide two additional 
conditions. The first is that the registrant must give such 
information on the subject that it possesses or can acquire without 
unreasonable effort or expense, together with the sources of that 
information. The second is that the registrant must include a 
statement either showing that unreasonable effort or expense would 
be involved or indicating the absence of any affiliation with the 
person within whose knowledge the information rests and stating the 
result of a request made to such person for the information.
---------------------------------------------------------------------------

E. Definition of ``Project''

1. Proposed Rules
    We proposed requiring a resource extraction issuer to disclose 
payments made to governments relating to the commercial development of 
oil, natural gas, or minerals by type and total

[[Page 49378]]

amount per project.\252\ The proposed definition of ``project'' was 
modeled on the definition found in the EU Directives and the ESTMA 
Specifications, albeit modified to provide resource extraction issuers 
with additional flexibility on how to treat operations involving 
multiple, related contracts.
---------------------------------------------------------------------------

    \252\ See Section II.E of the Proposing Release.
---------------------------------------------------------------------------

    Similar to the EU Directives and the ESTMA Specifications, we 
proposed to define ``project'' as operational activities that are 
governed by a single contract, license, lease, concession, or similar 
legal agreement, which form the basis for payment liabilities with a 
government.\253\ The proposed definition was also similar to the EU 
Directives and the ESTMA Specifications in allowing issuers to treat 
multiple agreements that are both operationally and geographically 
interconnected as a single project.\254\ Unlike the EU Directives and 
Canadian definitions, however, our proposed definition of ``project'' 
provided additional flexibility to issuers by excluding a requirement 
that the agreements have ``substantially similar terms.''
---------------------------------------------------------------------------

    \253\ See proposed Item 2.01(c)(10) of Form SD.
    \254\ Id.
---------------------------------------------------------------------------

    In order to assist resource extraction issuers in determining 
whether two or more agreements may be treated as a single project, we 
proposed an instruction that provided a non-exclusive list of factors 
to consider when determining whether agreements are ``operationally and 
geographically interconnected'' for purposes of the definition of 
project. No single factor was necessarily determinative. Those factors 
included: Whether the agreements related to the same resource and the 
same or contiguous part of a field, mineral district, or other 
geographic area; whether they were performed by shared key personnel or 
with shared equipment; and whether they were part of the same operating 
budget.\255\ Furthermore, we proposed an instruction stating that 
issuers were not required to disaggregate payments that are made for 
obligations levied on the issuer at the entity level rather than the 
project level.\256\
---------------------------------------------------------------------------

    \255\ See proposed Instruction 12 to Item 2.01 of Form SD.
    \256\ See proposed Instruction 4 to Item 2.01 of Form SD.
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on many possible 
approaches to defining the term ``project,'' as well as the broader 
question of whether we should define ``project'' at all. We sought 
public comment on how best to craft a definition that advanced the U.S. 
governmental interest in combatting global corruption and promoting 
public accountability with respect to extractive resources. 
Specifically, we asked about alternative definitions found in other 
jurisdictions, such as the European Union and Canada, as well as the 
API's proposed definition. We asked commenters to consider how 
alternative definitions might enhance transparency and the 
comparability of data. For example, we asked whether we should align 
our definition more closely with the EU Directives and ESTMA and 
whether there was an alternative to a contract-based definition of 
``project'' that would be preferable. We also asked commenters about 
specific aspects of the proposed rules, such as under what 
circumstances should the rules allow for multiple agreements to be 
aggregated as a single project.
    Numerous commenters supported the statute's directive to require 
disclosure at the project level.\257\ Many other commenters supported 
defining ``project'' in relation to a legal agreement, such as a 
contract, lease, license, or concession, consistent with the definition 
in the European Union and Canada.\258\ A number of other commenters 
specifically supported the proposed definition.\259\ One of these 
commenters stated that project-level disclosure by contract was 
necessary to evaluate and implement effective oil and mineral revenue 
sharing policies in Ghana.\260\ USAID stated that the EITI standard 
also encourages public disclosure of the details of contracts and 
licenses that provide the terms for the exploitation of oil, gas, and 
minerals.\261\
---------------------------------------------------------------------------

    \257\ See letters from Peck & Chayes; Quinones; Sen. Cardin et 
al.; Sen. Lugar et al.; and Form Letter A.
    \258\ See Form Letter B.
    \259\ See letters from ACEP; ACTIAM NV, AP1/F[ouml]rsta AP-
Fonden (First Swedish National Pension Fund), Andra AP2-Fonden 
(Second Swedish National Pension Fund), AP3/Tredje AP-Fonden (Third 
Swedish National Pension Fund), AP4/Fj[auml]rde AP-Fonden (Fourth 
Swedish National Pension Fund), Aviva Investors, B[acirc]tirente, 
BMO Global Asset Management, BNP Paribas Investment Partners, 
British Columbia Investment Management Corporation, California State 
Teachers' Retirement System (CalSTRS), Calvert Investments, Cartica 
Capital, Ethos Foundation, Switzerland, Henderson Global Investors, 
Hermes Equity Ownership Services Ltd., Legal & General Investment 
Management, NEI Investments, RPMI Railpen Investments, and Sandglass 
Capital Management (Mar. 8, 2016) (``ACTIAM et al.''); Bean; BHP; 
Calvert; Department of Interior; State Department; Encana; Global 
Witness 1; McCarthy; NRGI 1; Oxfam 1; PWYP-US 1; TI-USA; USAID; and 
USSIF.
    \260\ See letter from ACEP.
    \261\ See letter from USAID.
---------------------------------------------------------------------------

    Of the commenters supporting the proposed definition of 
``project,'' one supported the proposed non-exclusive list of factors 
to consider when determining whether agreements are ``operationally and 
geographically interconnected.'' \262\ This commenter stated that these 
factors would help ensure that issuers are in compliance with the 
proposed rules. Other commenters that were supportive of the 
``project'' definition, however, recommended eliminating the list of 
non-exclusive factors and providing clear instructions on when 
agreements could be aggregated.\263\ Also, several commenters 
recommended only allowing for agreements to be aggregated if they have 
substantially similar terms \264\ and are operationally and 
geographically ``integrated'' rather than ``interconnected.'' \265\ 
These commenters expressed concern that the proposed rules might allow 
issuers to ``artificially aggregate payments and obfuscate payment 
information.'' \266\ These commenters also questioned whether the 
``cost to issuers of [requiring] `substantially similar terms' 
outweighs the gains of equivalency'' with other transparency 
regimes.\267\ On the other hand, the Department of Interior noted that 
the proposed level of aggregation correlated to on-the-ground 
operations on U.S. federal lands.\268\
---------------------------------------------------------------------------

    \262\ See letter from BHP.
    \263\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \264\ See letters from PWYP-US 1 and USAID. See also letters 
from ACEP; Global Witness 1; and Oxfam 1.
    \265\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \266\ See id.
    \267\ See id.
    \268\ See letter from Department of Interior.
---------------------------------------------------------------------------

    Several other commenters opposed the proposed definition of 
``project.'' \269\ For example, one of these commenters criticized the 
definition as too vague and was concerned that disclosing payments to 
foreign and subnational governments on a per contract or project basis 
would severely disadvantage competition against state-affiliated firms 
that are not subject to similar rules.\270\ Another of these commenters 
questioned ``the utility of adopting an overly expansive EU 
definition'' of ``project'' when it results in companies using 
``different definitions to describe largely similar activities'' and 
provides ``great volumes of data'' with ``no framework in place that 
allows everyday citizens to have even a fighting chance of 
understanding what's actually being reported.'' \271\ Most of the 
commenters that opposed the Commission's proposed definition of project 
supported

[[Page 49379]]

the API's alternative definition (the ``API Proposal''). These 
commenters stated that the API Proposal would have lower compliance 
costs, generate more useful data due to the use of consistent 
geographic descriptions and project descriptions across the data set, 
and would cause less competitive harm due to the higher level of 
aggregation, while still achieving the purposes of the statute. In this 
regard, two supporters of the API definition suggested that the use of 
International Organization for Standardization (``ISO'') codes would 
provide consistent subnational geographic descriptions when using the 
API's project naming system.\272\ One industry commenter supporting the 
API Proposal also expressed support for the proposed rules if certain 
changes were made to the alternative reporting provisions and the 
definition of ``control.'' \273\
---------------------------------------------------------------------------

    \269\ See letters from API 1; ASP; BP; Chevron; ExxonMobil 1; 
Nouveau; and RDS.
    \270\ See letter from Encana.
    \271\ See letter from ASP.
    \272\ See letters from ASP and ExxonMobil 1. ISO is an 
independent, non-governmental international organization with a 
membership composed of various national standards bodies. See About 
ISO, available at http://www.iso.org/iso/home/about.htm (last 
visited June 16, 2016).
    \273\ See letter from RDS (requesting that the Commission 
recognize UK implementation of the EU Directive as an approved 
alternative reporting scheme and clarify that Rule 12b-21 would 
permit a company to exclude information with regard to 
proportionally consolidated non-operated entities where it does not 
have access to the required information needed to be disclosed. See 
Section II.J.3, infra, and Section II.D.3, supra, for discussion of 
these requests.
---------------------------------------------------------------------------

    Several of the commenters that supported the proposed definition 
also specifically criticized the API Proposal for not providing a 
sufficiently granular level of information to meet the statute's 
transparency goals and for being inconsistent with international 
transparency promotion efforts.\274\ One of these commenters 
specifically argued that the use of ISO codes to identify subnational 
geographic location would be too broad geographically, and disputed the 
contention that the data generated under the EU Directives would be 
difficult to evaluate.\275\
---------------------------------------------------------------------------

    \274\ See, e.g., ACEP and PWYP-US 1.
    \275\ See letter from McCarthy.
---------------------------------------------------------------------------

3. Final Rules
    After considering commenters' recommendations and international 
developments \276\ since the Proposing Release, we are adopting the 
definition of ``project'' as proposed. The final rules define 
``project'' as operational activities that are governed by a single 
contract, license, lease, concession, or similar legal agreement, which 
form the basis for payment liabilities with a government.\277\
---------------------------------------------------------------------------

    \276\ See Section I.C. above.
    \277\ We expressly incorporate the Proposing Release's 
discussion of the rationales for the definition of project. See 
Proposing Release, Section II.E.
---------------------------------------------------------------------------

    Commenters continue to express strong disagreement over the level 
of granularity that should be adopted for the definition of 
``project.'' After carefully considering the comments received, we 
remain persuaded that the definition of project that we proposed is 
necessary and appropriate to achieve a level of transparency that will 
help advance the important anti-corruption and accountability 
objectives underlying Section 13(q).\278\ In the Proposing Release, we 
explained specific considerations that supported this contract-based 
definition of project:
---------------------------------------------------------------------------

    \278\ One commenter asserted that foreign governments might use 
the Section 13(q) disclosure requirement as ``a pretext for 
expropriating'' the assets of a resource extraction issuer. See 
letter from API 1. We note that an issuer facing such a situation 
could seek exemptive relief from the Commission to potentially delay 
or avoid its Section 13(q) reporting obligation and, thus, to 
potentially forestall the expropriation. See Section II.I below for 
our discussion of exemptive relief. We also note that the commenter 
stated that the required disclosures would be a ``pretext'' for 
expropriation. If a country is intent on expropriating a resource 
extraction issuer's assets, it is not clear that there is any action 
the Commission could take, either in this rulemaking or later 
through exemptive relief, that could dissuade the action.

     Such disaggregated information may help local 
communities and various levels of subnational government combat 
corruption by enabling them to verify that they are receiving the 
resource extraction revenue allocations from their national 
governments that they may be entitled to under law. In this way, 
project-level disclosure could help reduce instances where 
government officials are depriving subnational governments and local 
communities of revenue allocations to which they are entitled.
     Project-level reporting at the contract level could 
potentially allow for comparisons of revenue flow among different 
projects, and the potential to engage in cross-project revenue 
comparisons may allow citizens, civil society groups, and others to 
identify payment discrepancies that reflect potential corruption and 
other inappropriate financial discounts.
     To the extent that a company's contractual or legal 
obligations to make resource extraction payments to a foreign 
government are known, company-specific, project-level disclosure may 
help assist citizens, civil society groups, and others to monitor 
individual companies' contributions to the public finances and 
ensure firms are meeting their payment obligations.\279\ Such data 
may also help various actors ensure that the government is properly 
collecting and accounting for payments.
---------------------------------------------------------------------------

    \279\ In this regard, we note that one industry commenter has 
observed that, at least for contracts for projects that are older or 
well-established, ``the general terms are likely to be known even if 
technically not public.'' See letter from API 1.
---------------------------------------------------------------------------

     Company-specific, project-level data may also act as a 
strong deterrent to companies underpaying royalties or other monies 
owed.\280\ Such data may also discourage companies from either 
entering into agreements that contain suspect payment provisions or 
following government officials' suspect payment instructions.\281\
---------------------------------------------------------------------------

    \280\ More broadly, we believe that, in contrast to the API 
Proposal of aggregated disclosure at the major subnational 
jurisdiction level, contract-level disclosure will better help deter 
corruption by all participants in the resource extraction sector. As 
we explained in the Proposing Release, detailed or granular 
disclosure makes hidden or opaque behavior more difficult. See 
Proposing Release, Section I.E.1. Specifically, the granular 
information makes it easier for the public and others to observe 
potential improprieties with respect to the payment flows and such 
disclosure makes it more difficult for actors to hide any 
impropriety from scrutiny. See generally 156 Cong. Rec. S3815 
(explaining that Section 13(q) is intended to create ``a historic 
transparency standard that will pierce the veil of secrecy that 
fosters so much corruption and instability in resource-rich 
countries . . . .''). This, in turn, has an enhanced deterrent 
effect that may discourage improper conduct in the first instance.
    \281\ For examples of the role that resource extraction 
companies can play in facilitating the suspect or corrupt practices 
of foreign officials seeking to divert for their own personal use 
resource extraction payments that belong to the government, see U.S. 
Senate Permanent Subcommittee on Investigations, Committee on 
Government Affairs, Money Laundering and Foreign Corruption: 
Enforcement and Effectiveness of the Patriot Act, Case Study 
Involving Riggs Bank Report, at 98-111 (July 14, 2004). Among other 
examples, this report discusses instances where, both at the 
direction of government officials of Equatorial Guinea (``E.G.'') 
and pursuant to suspect terms of the underlying contracts with the 
government, resource extraction companies diverted payments that 
should have been paid to the government to other accounts and to 
persons connected with E.G. government officials. Id. at 98 (finding 
that ``Oil companies operating in Equatorial Guinea may have 
contributed to corrupt practices in that country by making 
substantial payments to, or entering into formal business ventures 
with, individual E.G. officials, their family members, or entities 
they control, with minimal public disclosure of their actions''); 
see also id. at 99 & 104 (explaining that the E.G. government 
instructs oil companies where to send payments owed to the 
government and has directed oil companies to divert payments for 
potentially corrupt purposes such as paying the educational costs of 
the children and other relatives of E.G. government officials). By 
requiring the public disclosure of the identity of the resource 
extraction issuers who are making payments, we believe this may help 
to deter their willingness to participate in any such diversions of 
government revenues or to enter into any contracts that have suspect 
payment terms.
---------------------------------------------------------------------------

     Such disaggregated reporting may help local communities 
and civil society groups to weigh the costs and benefits of an 
individual project. Where the net benefits of a project are small or 
non-existent, this may be an indication that the foreign 
government's decision to authorize the project is based on 
corruption or other inappropriate motivations.\282\
---------------------------------------------------------------------------

    \282\ See Proposing Release, Section I.E.2.

    In advancing these potential uses for the granular transparency 
that our

[[Page 49380]]

definition of project would yield, we relied on concrete examples that 
commenters from countries across the globe provided to us.\283\ 
Moreover, two Executive Branch agencies with significant expertise in 
promoting the U.S. Government's anti-corruption and accountability 
foreign policy goals strongly supported our proposed approach. 
Specifically, the U.S. Department of State stated that the ``level of 
transparency required by the proposed rule is key for ensuring that 
citizens have the necessary means to hold their governments 
accountable. As written, the rule's requirements directly advance the 
United States' foreign policy interests in increasing transparency and 
reducing corruption in the oil, gas, and minerals sectors and 
strengthen the United States' credibility and ability to fight 
corruption more broadly[.]'' \284\ Similarly, USAID supported the 
proposed approach to defining project and explained that ``[o]nly 
through more granular, project-level reporting will disclosure produce 
meaningful data for citizens, civil society, and local groups that seek 
to break cycles of corruption that involve government and 
corporations.'' \285\
---------------------------------------------------------------------------

    \283\ See letter from ACEP (public disclosure of payments made 
by company and by project are critical in order to ensure that 
statutory allocation of mining royalties to Ghanaian subnational 
governments was received.). See also Proposing Release at n.94 and 
accompanying text (providing several additional examples).
    \284\ See letter from State Department.
    \285\ See letter from USAID.
---------------------------------------------------------------------------

    We acknowledge that some commenters, in particular the API and 
certain industry-affiliated commenters, challenged the appropriateness 
of the contract-based definition of project that we are adopting.\286\ 
In particular, one of the principal criticisms of this definition was 
that ``contract-specific disclosure actually frustrates Section 13(q)'s 
transparency objective.'' \287\ In advancing this view, the API 
contends that ``Section 13(q)'s goal of transparency is best served by 
a definition of project that aggregates payments to a more useful--
i.e., higher--level of generality, instead of burying the public in an 
avalanche of data that is irrelevant to the law's avowed purpose.'' 
\288\ After carefully considering the record (including filings that 
some companies have already prepared in accordance with a definition of 
project similar to our own), we do not share the API's view that the 
disclosures we are requiring would be counterproductive. Many of the 
commenters who have demonstrated a detailed understanding of the 
various possible disclosure regimes, particularly those civil society 
organizations and related actors that have experience using revenue 
data and that have expressed the greatest interest in the data that 
would be released under the final rules, disagree and have explained 
through specific examples how the granular data would be important to 
help reduce corruption and promote accountability.\289\ We are 
persuaded by both the arguments they have advanced and the evidence 
they have produced that a more granular approach to the definition of 
``project'' like the one we are adopting today is necessary.\290\
---------------------------------------------------------------------------

    \286\ The API asserts that the requirement that resource 
extraction issuers ``disclose payments at the contract-level is 
unmoored from the statute.'' Letter from API 1. The API, however, 
fails to explain why a contract-level focus is an unreasonable frame 
of reference for the term ``project.'' In commercial relations, 
contracts are frequently used to define the scope of a project that 
one party is undertaking for another. Also, as discussed above, the 
EU Directives and the ESTMA Specifications define project at the 
contract-level, further confirming that our definition is (at a 
minimum) reasonable. Furthermore, nothing in the text or legislative 
history of Section 13(q) forecloses a contract-level definition. For 
these reasons, and for the reasons that we expressed in Section 
II.E. of the Proposing Release, we continue to believe that a 
contract-based definition of ``project'' is reasonable and 
appropriate.
    \287\ See letter from API 1.
    \288\ See id. (``In addition, overly granular information could 
very likely make it more difficult for the public to make use of the 
disclosures.'') (emphasis in original).
    \289\ See letters from PWYP-US 1 and Oxfam-ERI.
    \290\ See letter from Oxfam-ERI and letters cited therein. The 
API asserts that contract-level reporting would ``give insurgents or 
terrorists valuable information about where the government is most 
financially vulnerable'' and ``[i]nsurgents can use that information 
to plan attack[s].'' Letter from API 1. We acknowledge that such 
groups can pose a threat. See, e.g., Saboteurs Hit Nigerian Oil, The 
Wall Street Journal, at A1 (June 6, 2016). However, we note that it 
appears that substantial information is already reasonably available 
to the public about the major resource extraction projects and 
facilities operating in countries around the world. For example, an 
internet search reveals the following non-exhaustive list of items: 
William Pentland, World's Five Largest Offshore Oil Fields, Forbes 
(Sept. 7, 2013), available at http://www.forbes.com/sites/williampentland/2013/09/07/worlds-five-largest-offshore-oil-fields/#674f017b4bea); James Burgess, Six of the Largest Oil Fields in the 
World Still Waiting To Be Developed, OilPrice.com (April 1, 2012), 
available at http://oilprice.com/Latest-Energy-News/World-News/6-of-the-Largest-Oil-Fields-in-the-World-Still-Waiting-to-be-Developed.html; Nick Cunningham, Here Are the World's Five Most 
Important Oil Fields, OilPrice.com (June 5, 2014), available at 
http://oilprice.com/Energy/Energy-General/Here-Are-The-Worlds-Five-Most-Important-Oil-Fields.html; Fredrik Robelius, Giant Oil Fields 
of the World (presentation on May 23, 2005) (listing 25 of the 
world's giant oil fields), available at http://www.peakoil.net/AIMseminar/UU_AIM_Robelius.pdf; Christopher Helman, In Depth: The 
Top 10 Oil Fields of the Future, Forbes (Jan. 1, 2010), available at 
http://www.forbes.com/2010/01/20/biggest-oil-fields-business-energy-oil-fields_slide.html; U.S. Energy Information Administration, Top 
100 U.S. Oil and Gas Fields (March 2015), available at http://www.eia.gov/naturalgas/crudeoilreserves/top100/pdf/top100.pdf. See 
also Perry-Casta[ntilde]eda Library Map Collection, available at 
http://www.lib.utexas.edu/maps/map_sites/oil_and_gas_sites.html 
(last visited June 16, 2016) (providing web links to maps detailing 
location of oil fields in Asia, Europe, the Middle East, Africa, 
North America, and South America); Collection of the U.S. Geological 
Survey's World Petroleum Assessment Publications, available at 
http://energy.usgs.gov/OilGas/AssessmentsData/WorldPetroleumAssessment.aspx (last visited June 16, 2016); 
International Petroleum Encyclopedia for 2015 (includes certain oil 
field production statistics); Natural Gas Information 2015 
(providing information on natural gas extraction pipeline trade); 
U.K. Oil and Gas: Field Data, available at https://www.gov.uk/guidance/oil-and-gas-uk-field-data#oil-and-gas-wells (last visited 
June 16, 2016) (data for oil and gas wells in the United Kingdom). 
The API's comment letter does not acknowledge the information that 
is already reasonably available nor does it explain why the payment 
data that would be made available under the Commission's rules would 
create an appreciably greater risk to safety than already may exist. 
In any event, as we discuss in Section II.I.3 below, the Commission 
will consider requests exemptive relief based on potential safety 
and terrorism concerns on a case-by-case basis, and resource 
extraction issues will have an opportunity in making such a request 
to demonstrate why an exemption is warranted with respect to a 
specific project, region, or country.
---------------------------------------------------------------------------

    We also believe that, in advancing its view, the API appears to 
have an unduly narrow understanding of Section 13(q)'s purpose. The API 
stated that Section 13(q) is limited ``to provid[ing] the public with 
information about the overall revenue that national governments receive 
from natural resources, so that the public can seek to hold the 
government accountable for how much it is receiving and how it spends 
that money.'' \291\ We believe that Section 13(q)'s anti-corruption and 
accountability goals are broader and include, among other things, 
providing transparency to members of local communities so that they can 
hold their government officials and others accountable for the 
underlying resource extraction agreements to help ensure that those 
agreements themselves are not corrupt, suspect, or otherwise 
inappropriate. To cabin Section 13(q)'s

[[Page 49381]]

goals as the API would do, in our view, would severely limit the 
potential transparency and anti-corruption benefits that the 
disclosures might provide to citizens of resource-rich countries.\292\
---------------------------------------------------------------------------

    \291\ See letter from API 1. The text of Section 13(q) itself 
suggests that the API's understanding of the statute's purpose is 
unduly narrow. Section 13(q) requires two broad categories of 
disclosure: ``the type and total amount of [resource extraction] 
payments made to each government'' (government-level disclosure), 
see Exchange Act Section 13(q)(2)(ii), and ``the type and total 
amount of such payments made for each project'' (project-level 
disclosure), see Exchange Act Section 13(q)(2)(i). Were the API 
correct that Section 13(q) is limited ``to provid[ing] the public 
with information about the overall revenue that national governments 
receive from natural resources, so that the public can seek to hold 
the government accountable for how much it is receiving and how it 
spends that money,'' Congress could have achieved this objective by 
simply mandating the government-level disclosure. That Congress did 
not stop there but instead also mandated project-level disclosure 
suggests to us that the anticorruption and accountability objectives 
underlying Section 13(q) are broader than the API asserts.
    \292\ We note that the API contends that a local community does 
not ``need contract-level disclosure to determine that someone is 
drilling for oil nearby or whether the community is receiving enough 
money from its national government.'' See letter from API 1. 
However, the API does not explain how the fact that a local 
community knows that a nearby project is ongoing can--absent the 
type of granular disclosure that the final rules will provide--allow 
that community to assess where it is receiving the portion of total 
revenues from the national government that are associated with the 
project.
---------------------------------------------------------------------------

    For the reasons discussed above, and for the reasons set forth in 
the Proposing Release, we believe that the definition of project that 
we are adopting will provide the type of granular transparency that is 
necessary to advance in a meaningful way the statute's anti-corruption 
and accountability objectives.\293\ In arriving at our determination, 
we carefully considered the API Proposal.\294\ Under that proposal, all 
of an issuer's resource extraction activities within the first-level of 
subnational political jurisdiction of a country below the national 
government would be treated as a single ``project'' to the extent that 
these activities involve the same resource (e.g., oil, natural gas, 
coal) and to the extent that they are extracted in a generally similar 
fashion (e.g., onshore or offshore extraction, or surface or 
underground mining). To illustrate how its proposed definition would 
work, the API explained that all of an issuer's extraction activities 
producing natural gas in Aceh, Indonesia (which comprises approximately 
22,500 square miles) would be identified as ``Natural Gas/Onshore/
Indonesia/Aceh.'' Similarly, the API explained that a project to 
develop oil offshore of Sakhalin Island, Russia (which comprises 
approximately 28,000 square miles) would be identified as ``Oil/
Offshore/Russia/Sakhalin.'' \295\
---------------------------------------------------------------------------

    \293\ We believe that the project-level public-disclosure 
mechanism that we are adopting is a sensible, carefully tailored 
policy prescription to help combat corruption and promote 
accountability in connection with resource extraction. We 
acknowledge, however, that this new transparency alone will not 
likely eliminate corruption in this area. As we stated in the 
Proposing Release, the ultimate impact of the disclosures will 
largely depend on the ability of all stakeholders--particularly 
civil society, media, parliamentarians, and governments--to use the 
available information to improve the management of their resource 
extractive sector. See Proposing Release, n.97 and accompanying text 
(quoting Alexandra Gillies & Antoine Heuty, Does Transparency Work? 
The Challenges of Measurement and Effectiveness in Resource-Rich 
Countries, 6 Yale J. Int'l Aff. 25 (2011)). We also find it relevant 
that the U.S. Government may have few other means beyond the 
disclosure mechanism required by Section 13(q) to directly target 
the myriad forms of corruption that can develop in connection with 
resource extraction (many of which extend well-beyond the quid-pro-
quo payments that are the target of the Foreign Corrupt Practices 
Act), or to promote greater accountability in the use of extractive 
resources and the revenues generated therefrom.
    \294\ Among other arguments, the API stated that we should adopt 
the API Proposal in order to avoid potential constitutional issues 
under the First Amendment. See letter from API 1. We have carefully 
considered that argument but believe that the public disclosure of 
the type of commercial payment information involved here does not 
run afoul of the First Amendment. Section 13(q) and the rules that 
we are adopting require the disclosure of payment information 
involving resource extraction activities so that the citizens of 
each country and those acting on their behalf can help combat 
corruption in connection with the sale of their nation's oil, gas, 
and mineral resources, and can hold relevant actors accountable. See 
generally EITI Progress Report 2016, From Reports to Results, 
available at http://progrep.eiti.org/2016/glance/what-eiti-does 
(last visited June 16, 2016) (``A country's natural resources, such 
as oil, gas, metals and minerals, belong to its citizens.''). We 
believe that the foreign policy interests involved here are 
compelling and substantial, as the administrative record 
demonstrates, and the means we have chosen to help advance those 
interests (including the public disclosure of contract-level payment 
information) are carefully tailored to do so.
    \295\ The API included a third example, stating that ``[o]nshore 
development in the Niger River delta area would be `Oil/Onshore/
Nigeria/Delta.'' See letter from the API (Nov. 7, 2013) (emphasis 
added). We relied on that example in the Proposing Release, but in a 
recent comment, the API explained that the data for the ``nine 
separate states in the Niger River Delta'' would not in fact ``be 
aggregated into one project''--``each state would be separate 
projects.'' See letter from API 1.
---------------------------------------------------------------------------

    We continue to believe that the reasons advanced in the Proposing 
Release demonstrating why the API Proposal's definition of project is 
not appropriate remain valid and persuasive.\296\ Those include the 
following:
---------------------------------------------------------------------------

    \296\ The API stated that Congress, by requiring payment 
disclosure with respect to ```each project''' and `` `each 
government','' ``wanted companies to provide information about . . . 
the region in which the resource is located.'' Letter from API 1. We 
agree with the API on this general point, but, as discussed above, 
we disagree that defining the region by the major subnational 
political jurisdiction is required (or even suggested) by the 
statute as the appropriate level of transparency. See also Proposing 
Release, Section II.E.

     We do not agree that engaging in similar extraction 
activities across the territory comprising the first-level 
subnational political jurisdictions of countries provides the type 
of defining feature to justify aggregating those various activities 
together as a solitary project.\297\ Relatedly, by so heavily 
focusing on subnational political jurisdictions as a defining 
consideration, the API's definition appears to disregard the 
economic and operational considerations that we believe would more 
typically--and more appropriately--be relevant to determining 
whether an issuer's various extraction operations should be treated 
together as one project.
---------------------------------------------------------------------------

    \297\ We also note the API Proposal appears to be inconsistent 
with how companies in the resource extraction sector often refer to 
their ``projects'' with foreign countries. Similar to the definition 
we are adopting, it appears that companies use the term project to 
refer to their concession-level or field-level operations. See, 
e.g., Texaco's Web page available at https://www.texaco.com/ecuador/en/history/background.aspx (last visited June 16, 2016) (describing 
``Texaco Petroleum's involvement with the [Oreinte] project [that] 
was governed by a 28-year concession agreement''); Crescent 
Petroleum's Web page available at http://www.crescentpetroleum.com/ 
(last visited June 16, 2016) (listing under the heading ``select 
projects'' two concession-level extraction projects--the ``Onshore 
Sharjah Concession'' and ``The Mubarek Field''); New World Oil and 
Gas Web page available at http://www.nwoilgas.com/projects/ (last 
visited June 16, 2016) (describing the ``Blue Creek Project'' as 
consisting of ``one 315 sq km onshore oil concession divided into 
two blocks located in NW Belize''); The Dodsal Group Web page 
available at http://dodsal.com/mining/projects.shtml (last visited 
June 16, 2016) (listing the company's various hydrocarbon and 
mineral projects, each of which is described at the concession 
level, including Itingi, which is a ``concession from the Ministry 
of Energy and Minerals, Government of Tanzania, for mining at a 
location approximately 1,250 km South-West of Dar es Salaam'' and 
``which is approximately 101 sq. km''). See also, e.g., Chevron Web 
page available at https://www.chevron.com/projects (listing as 
separate projects various oil fields around the globe, including the 
Kern River Field in California, the Captain EOR Field in the United 
Kingdom, and the Duri Field in Indonesia); British Petroleum's Web 
page available at http://tools.bp.com/investor-tools/upstream-major-projects-map.aspx (last visited June 16, 2016) (describing various 
British Petroleum projects by reference to field operations, such as 
the Amenas ``wet-gas field,'' the Culzean ``lean gas condensate 
field,'' and the ``Clair Ridge Project'' that ``develops new 
resources from the giant Clair Field which . . . extends over an 
area of 85 square miles'').
---------------------------------------------------------------------------

     Separately, the API Proposal in our view would not 
generate the level of transparency that, as discussed above, we 
believe would be necessary or appropriate to help meaningfully 
achieve the U.S. Government's anti-corruption and accountability 
goals. By permitting companies to aggregate their oil, natural gas, 
and other extraction activities over large territories, the API's 
definition would not provide local communities with payment 
information at the level of granularity necessary to enable them to 
know what funds are being generated from the extraction activities 
in their particular areas.\298\ This would deprive them of the

[[Page 49382]]

ability, for example, to assess the relative costs and benefits of 
the particular license or lease to help ensure that the national 
government or subnational government has not entered into a corrupt, 
suspect, or otherwise inappropriate arrangement.
---------------------------------------------------------------------------

    \298\ An additional deficiency with the API Proposal, which 
relies on the major subnational political jurisdiction as the 
defining characteristic of ``project,'' is that it could produce 
vastly disparate transparency from one jurisdiction to another. 
Residents of subnational jurisdictions that occupy a relatively 
small area (e.g., State of Sergipe, Brazil (approximately 8,400 
square miles)) would receive data that, because of the jurisdictions 
limited size, may be more localized; but residents of subnational 
jurisdictions that are relatively large in size (e.g., State of 
Par[aacute], Brazil (approximately 481,700 square miles)) would 
receive disclosures that provide potentially less localized 
transparency given the potentially large number of extractive 
activities that might be included within the project-level 
disclosure. By contrast, as we explained in the Proposing Release 
(and which no commenter disputed), oil, gas, and mining contracts 
not only typically cover areas that are much smaller than a major 
subnational political jurisdiction, there is also a relative degree 
of uniformity in the size of the covered area. For example, we 
explained that the typical contract area for oil and gas exploration 
is between approximately 400 to 2,000 square miles. See Proposing 
Release, Section II.E.2. Also, mining concessions typically cover 
only a single mine. Id. Thus, we believe that our contract-level 
definition of project has the additional advantage of producing a 
level of transparency that will be more consistent across 
jurisdictions than the API Proposal.
    We also note that the API asserts that the contract-level 
approach to project may, ``at times, cover a broad geographic 
area.'' Letter from API 1. While we acknowledge that this may occur, 
we believe (as the discussion above demonstrates) that the 
potentially broad geographic areas that our definition may in some 
instances apply to are still much smaller than the geographic areas 
that the API's proposed definition of project would cover. Moreover, 
as we explained in the Proposing Release, all of the alternative 
approaches to defining project that were recommended would likely 
result in disclosure that is more aggregated (and therefore less 
detailed) on a geographical basis and would thus potentially be less 
useful for purposes of realizing the statute's objectives of 
increasing payment transparency to combat global corruption and 
promote accountability. See Proposing Release, Section II.E.2.

    Beyond these considerations, our own experience in implementing the 
Foreign Corrupt Practices Act leads us to believe that the granular 
disclosures that our definition will produce will better help combat 
corruption than the aggregated (and anonymized) disclosures that the 
API Proposal would yield. We have found that requiring issuers to 
maintain detailed, disaggregated records of payments to government 
officials significantly decreases the potential for issuers and others 
to hide improper payments and as such their willingness to make such 
payments. This experience has led us to believe that, where corruption 
is involved, detailed, disaggregated disclosures of payments minimizes 
the potential to engage in corruption undiscovered. We thus believe 
that the more granular the disclosure in connection with the 
transactions between governments and extractive corporations, the less 
room there will be for hidden or opaque behavior.\299\
---------------------------------------------------------------------------

    \299\ We also believe that the more granular disclosures that 
will result from the final rules relative to the API Proposal will 
help provide a powerful incentive for community-based involvement in 
monitoring corruption and holding officials accountable by making 
clear to those communities in a direct and concrete fashion what 
revenues are being generated from their local natural resources.
---------------------------------------------------------------------------

    We acknowledge that the API Proposal's definition of ``project'' 
could lower the potential for competitive harm when compared to our 
proposed approach, which requires public disclosure of contract-level 
data. Nevertheless, we continue to believe that the potential for 
competitive harm resulting from the final rules is significantly 
reduced, although not eliminated, by the adoption of a similar 
definition of ``project'' in the European Union and Canada.\300\ In 
this regard, we note that the transposition of the EU Directives has 
progressed since we issued the Proposing Release and Canada has 
finalized the ESTMA Guidelines and ESTMA Specifications,\301\ and some 
issuers have already disclosed (and we expect others will shortly be 
disclosing) such project level information.\302\ Furthermore, several 
commenters have questioned the API's assertion that a more granular 
definition of ``project'' would reveal commercially sensitive 
information.\303\ For example, one of these commenters argued that 
``contract terms are generally known within the industry.'' \304\ We 
also believe that, beyond the potential for reduced competitive harm, a 
disclosure requirement that is in accordance with the emerging 
international transparency regime is consistent with Section 13(q), 
including its instruction that, ``[t]o the extent practicable,'' the 
Commission's rules ``shall support the commitment of the Federal 
Government to international transparency promotion efforts relating to 
the commercial development of oil, natural gas, or minerals.'' \305\ 
Thus, we believe that the definition of project that we are proposing 
is, on balance, necessary and appropriate notwithstanding the potential 
competitive concerns that may result in some instances.\306\
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    \300\ We disagree with the API's assertion that the 
implementation of the EU Directives and ESTMA does not mitigate 
competitive harm because ``[f]orty-six of the top 100 oil and gas 
companies are listed only in the United States.'' See letter from 
API 1. Although these companies may lose the competitive advantage 
they previously had in the absence of rules implementing Section 
13(q), an argument disputed by other commenters, we believe that any 
competitive harm caused by the final rules will be significantly 
less than what would occur in the absence of the EU Directives and 
ESTMA.
    \301\ See ESTMA Guidance (2016) and ESTMA Technical Reporting 
Specifications (2016).
    \302\ For example, see the following reports:
     Royal Dutch Shell plc, Report on Payments to 
Governments for the Year 2015, available at http://www.shell.com/sustainability/transparency/revenues-for-governments.html (``RDS 
Report'');
     Total, 2015 Registration Document (Mar. 15, 2016), 
available at http://www.total.com/sites/default/files/atoms/files/registration_document_2015.pdf (``Total Report'');
     Tullow Oil plc, 2015 Annual Report & Accounts (Mar. 15, 
2016), available at http://www.tullowoil.com/Media/docs/default-source/3_investors/2015-annual-report/tullow-oil-2015-annual-report-and-accounts.pdf (``Tullow Report'')  BHP Billiton, Economic 
Contribution and Payments to Governments Report 2015 (Sept. 23, 
2015), available at http://www.bhpbilliton.com/~/media/bhp/
documents/investors/annual-reports/2015/
bhpbillitoneconomiccontributionandpaymentstogovernments2015.pdf 
(``BHP Report'');
     Statoil, 2015 Payments to Governments, available at 
http://www.statoil.com/no/InvestorCentre/AnnualReport/AnnualReport2015/Documents/DownloadCentreFiles/01_KeyDownloads/2015%20Payments%20to%20governments.pdf (``Statoil Report'');
     Kosmos Energy, Transparency, available at http://www.kosmosenergy.com/responsibility/transparency.php (``Kosmos 
Report'').
    See also letters from Oxfam America (May 2, 2016) (``Oxfam 2'') 
and Publish What You Pay--US (Apr. 7, 2016) (``PWYP-US 5'').
    \303\ See letters from Oxfam American and EarthRights 
International (Mar. 8, 2016) (``Oxfam-ERI'') and PWYP-US 1.
    \304\ See letter from Oxfam-ERI (noting that host countries and 
competitors, including state-owned companies, have the resources to 
access services that provide the information that the API and others 
have argued is commercially sensitive).
    \305\ See generally The Brussels G7 Summit Declaration ]17 (June 
5, 2014), available at http://europa.eu/rapid/press-release_MEMO-14-402_en.htm (last visited June 16, 2016) (``We remain committed to 
work towards common global standards that raise extractives 
transparency, which ensure disclosure of companies' payments to all 
governments. We welcome the progress made among G7 members to 
implement quickly such standards. These global standards should 
continue to move towards project-level reporting.''). We acknowledge 
that Congress's instruction to ``support the commitment of the 
Federal Government to international transparency promotion efforts'' 
is subject to the qualification ``[t]o the extent practicable.'' See 
Exchange Act Section 13(q)(2)(E). We believe that our project-level 
public disclosure regime comports with this instruction. It is now 
apparent that the reporting that we are requiring is practicable--
that is, it is capable of being done or accomplished--because 
companies are already making similar disclosures pursuant to the EU 
Directives. Moreover, as both the Department of State and USAID have 
confirmed, our disclosure regime furthers the Federal Government's 
foreign policy interests in promoting international transparency by, 
among other things, fostering compatibility with the existing 
European Union and Canadian transparency regimes. We also believe 
that our, contract-based, public disclosure regime is consistent 
with, and furthers, the EITI, which, as noted in the comment letter 
from USAID, encourages implementing countries ``to publicly disclose 
any contracts and licenses that provide the terms attached to the 
exploitation of oil, gas and minerals.'' EITI Standard at 19. See 
note 261 above and accompanying text.
    \306\ In this regard, and as we discuss in Section II.G.3 below, 
we will consider using our existing authority under the Exchange Act 
to provide exemptive relief at the request of a resource extraction 
issuer, if and when warranted. We believe that this case-by-case 
approach to exemptive relief would permit us to tailor any relief to 
the particular facts and circumstances presented, which could 
include facts related to potential competitive harm.
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    We are also adopting the proposed approach to aggregating multiple 
agreements. Despite the concerns of some commenters that the standards 
in the proposed rule for aggregating multiple projects could result in 
a

[[Page 49383]]

reduction of meaningful payment information, we continue to believe 
that the additional flexibility afforded by this approach would benefit 
issuers and would have limited impact on the overall level of 
transparency provided by the rules. As noted above, we believe that 
there are relatively minor differences between the approach we are 
adopting today and other international regimes \307\ and note that many 
commenters supported the proposed definition.\308\ As we indicated in 
the Proposing Release, we understand that operations under one 
agreement may lead to the parties entering into a second agreement for 
operations in a geographically contiguous area. If a change in market 
conditions or other circumstances compels a government to insist on 
different terms for the second agreement, then under our definition the 
use of those different terms by themselves would not preclude treating 
the second agreement as the same project when, operationally and 
geographically, work under the second agreement is a continuation of 
work under the first. In that way, it should reduce the burdens 
associated with disaggregating payments.
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    \307\ The EU Directives and ESTMA Specifications both state that 
a ``project'' means ``the operational activities that are governed 
by a single contract, license, lease, concession or similar legal 
agreements and form the basis for payment liabilities with a 
government. Nonetheless, if multiple such agreements are 
substantially interconnected, this shall be considered a project.'' 
Article 41(4) of the EU Accounting Directive; ESTMA Specifications, 
Section 2.3.2 The EU Directives and ESTMA Specifications go on to 
define ``substantially interconnected'' as ``a set of operationally 
and geographically integrated contracts, licenses, leases or 
concessions or related agreements with substantially similar terms 
that are signed with the government and give rise to payment 
liabilities.'' Recital 45 of the EU Accounting Directive; ESTMA 
Specifications, Section 2.3.2.
    \308\ See note 259 above and accompany text.
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F. Definition of ``Foreign Government'' and ``Federal Government''

1. Proposed Rules
    In Section 13(q), Congress defined ``foreign government'' to mean a 
foreign government, a department, agency, or instrumentality of a 
foreign government, or a company owned by a foreign government, while 
granting the Commission the authority to determine the scope of the 
definition.\309\ Consistent with the 2012 Rules, we proposed a 
definition of ``foreign government'' that would include a foreign 
national government as well as a foreign subnational government, such 
as the government of a state, province, county, district, municipality, 
or territory under a foreign national government.\310\ The proposed 
definition is consistent with Section 13(q), which requires an issuer 
to identify, for each disclosed payment, the government that received 
the payment and the country in which the government is located.\311\ It 
is also consistent with the EU Directives, ESTMA Guidance, and the 
EITI.\312\ The Proposing Release also indicated that ``Federal 
Government'' means the United States Federal Government.
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    \309\ 15 U.S.C. 78m(q)(1)(B).
    \310\ See proposed Item 2.01(c)(7) of Form SD.
    \311\ See 15 U.S.C. 78m(q)(2)(D)(ii)(V).
    \312\ See EU Accounting Directive, Art. 41(3) (``Government 
means any national, regional or local authority . . .''); ESTMA 
Guidance, Section 3.2 (``[A] Payee is . . . any government . . . at 
a national, regional, state/provincial or local/municipal level . . 
.''); EITI Standard, at 25 (requiring the disclosure and 
reconciliation of material payments to subnational government 
entities in an EITI Report).
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2. Comments on the Proposed Rules
    The Proposing Release solicited comment on the scope of the 
definitions of ``foreign government'' and ``Federal Government.'' For 
example, we asked whether the definition of ``foreign government'' 
should include a foreign government, a department, agency, or 
instrumentality of a foreign government, a company owned by a foreign 
government, or anything else. We also asked about the level of 
ownership that would be appropriate for a company to be considered 
owned by a foreign government. With respect to ``Federal Government,'' 
we requested comment on whether we should provide additional guidance 
on its meaning.
    We received few comments on this aspect of the proposal. Several 
commenters generally supported the proposed definition of ``foreign 
government.'' \313\ These commenters, however, recommended that the 
rules be revised so that ``a company owned by a foreign government'' 
would include a company where the ``government has a controlling 
shareholding, enabling it to make the major decisions about the 
strategy and activities of the company,'' rather than requiring 
majority ownership as proposed. As for the definition of ``Federal 
Government,'' one commenter supported the proposed approach.\314\
---------------------------------------------------------------------------

    \313\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \314\ See letter from Department of Interior.
---------------------------------------------------------------------------

3. Final Rules
    We are adopting the definitions of ``foreign government'' and 
``Federal Government'' as proposed. Under the final rules, a ``foreign 
government'' is defined as a foreign government, a department, agency, 
or instrumentality of a foreign government, or a company at least 
majority owned by a foreign government. Foreign government includes a 
foreign national government as well as a foreign subnational 
government, such as the government of a state, province, county, 
district, municipality, or territory under a foreign national 
government.\315\ ``Federal Government'' means the U.S. Federal 
Government and does not include subnational governments within the 
United States.
---------------------------------------------------------------------------

    \315\ To the extent that aboriginal, indigenous, or tribal 
governments are subnational governments in foreign countries, 
payments to those government entities would be covered by the final 
rules.
---------------------------------------------------------------------------

    As we discussed in the Proposing Release, for purposes of 
identifying the foreign governments that received the payments, an 
issuer must identify the administrative or political level of 
subnational government that is entitled to a payment under the relevant 
contract or foreign law. Also, if a third party makes a payment on a 
resource extraction issuer's behalf, disclosure of that payment is 
covered under the final rules. Additionally, as proposed, a company 
owned by a foreign government means a company that is at least 
majority-owned by a foreign government.\316\ Although we acknowledge 
the concerns of the commenters that argued for a more expansive 
definition, we believe it would be difficult for issuers to determine 
when the government has control over a particular entity outside of a 
majority-ownership context. In this regard, we note that the statute 
refers to a company ``owned'' by a foreign government, not 
``controlled'' by a foreign government. The control concept, of course, 
is explicitly used in other contexts in Section 13(q).\317\
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    \316\ See proposed Item 2.01(c)(7) of Form SD.
    \317\ Compare Section 13(q)(1)(B) with Section 13(q)(2(A).
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G. Annual Report Requirement

1. Proposed Rules
    We proposed requiring issuers to make their resource extraction 
payment disclosure annually on Form SD. The proposed amendments to Form 
SD required issuers to include a brief statement in the body of the 
form directing readers to the detailed payment information provided in 
the exhibits to the form. Consistent with the approach under ESTMA, the 
proposed rules also required resource extraction issuers to file Form 
SD on EDGAR no later than 150 days after the end of the issuer's most 
recent fiscal year.\318\
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    \318\ See proposed General Instruction B.2 to Form SD.

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[[Page 49384]]

2. Comments on the Proposed Rules
    The Proposing Release solicited comment on whether issuers should 
provide the payment disclosure mandated under Section 13(q) on Form SD 
or whether that information should be provided on Forms 10-K, 20-F, or 
40-F or a different form. We also asked whether the proposed disclosure 
should be subject to the officer certifications required by Exchange 
Act Rules 13a-14 and 15d-14 or a similar requirement.\319\ In addition 
to requesting comment on the proposed 150 day filing deadline, we 
solicited comment on whether the rules should require disclosure on a 
fiscal year basis or an annual year basis, whether we should provide a 
mechanism for requesting extensions (such as by amending Exchange Act 
Rule 12b-25 \320\), and whether the rules should provide an 
accommodation to filers that are subject to both Rules 13p-1 and 13q-1, 
such as an alternative filing deadline.
---------------------------------------------------------------------------

    \319\ We solicited comment on a similar question in Section 
II.G.6 of the Proposing Release. We address the responses to that 
request for comment in this section as well.
    \320\ 17 CFR 240.12b-25.
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    Several commenters specifically supported using Form SD, and no 
commenters suggested an alternative approach.\321\ Nevertheless, some 
of the commenters conditioned their support for Form SD on the 
disclosures being filed rather than furnished.\322\ The commenters 
addressing the filing deadline all supported the proposed 150 day 
requirement,\323\ although several commenters recommended providing a 
phase-in period for newly public companies or newly acquired 
companies.\324\ One of these commenters agreed with our assessment that 
the proposed deadline would reduce compliance costs by allowing issuers 
to use their existing processes and reporting systems to produce the 
disclosure.\325\ Other commenters noted that the proposal was 
consistent with the Canadian and United Kingdom regimes.\326\ These 
commenters also supported allowing issuers to rely on Rule 12b-25 to 
request extensions, subject to certain conditions.
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    \321\ See letters from PWYP-US 1 and USSIF. See also letters 
from ACEP; Encana; Global Witness 1; and Oxfam 1.
    \322\ See letter from PWYP-US 1. See also letters from ACEP; 
Encana; Global Witness 1; and Oxfam 1.
    \323\ See letters from Encana and PWYP-US 1. See also letters 
from ACEP; Global Witness 1; and Oxfam 1.
    \324\ See letters from Cleary and Michael R. Littenberg, Ropes & 
Gray (Feb. 16, 2016) (``Ropes & Gray'').
    \325\ See letter from Encana.
    \326\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
---------------------------------------------------------------------------

    No commenters suggested requiring officer certifications. Some 
commenters stated that certifications were unnecessary in light of the 
possibility for Exchange Act Section 18 liability.\327\ One commenter 
opposed such a requirement, stating that it would add significant costs 
with little benefit.\328\
---------------------------------------------------------------------------

    \327\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \328\ See letter from Encana.
---------------------------------------------------------------------------

    Some commenters specifically supported the proposed approach of 
using an issuer's fiscal year as the reporting period.\329\ These 
commenters, however, incorrectly assumed that the data was tagged by 
quarterly period so that users could generate their own calendar year 
reports if they chose to do so. It is unclear whether those commenters 
would have recommended a different approach if, as proposed, the data 
is not tagged by fiscal quarter.\330\ The Department of Interior did 
not make a specific recommendation regarding the reporting period, but 
noted that the USEITI MSG decided to use calendar year reporting for 
the USEITI because it reduced the burden on reporting companies, many 
of which use the calendar year as their fiscal year.\331\
---------------------------------------------------------------------------

    \329\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \330\ The proposed rules provided for tagging of the ``financial 
period in which the payments were made'' and defined ``financial 
period'' as ``the fiscal year in which the payment was made.'' See 
proposed Item 2.01(a)(5), (c)(6) of Form SD. The final rules take 
the same approach, although we have clarified the text so as to 
avoid similar confusion. See Item 2.01(a)(5).
    \331\ See letter from Department of Interior.
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3. Final Rules
    We are adopting the final rules as proposed, with two new targeted 
exemptions that provide for transitional relief or delayed reporting in 
limited circumstances. These exemptions provide a longer transition 
period for recently acquired companies that were not previously subject 
to reporting under the final rules and a one-year delay in reporting 
payments related to exploratory activities.\332\
---------------------------------------------------------------------------

    \332\ See Section II.I.3 below for a discussion of the latter 
provision.
---------------------------------------------------------------------------

    Section 13(q) requires a resource extraction issuer to provide the 
required payment disclosure in an annual report but otherwise does not 
specify the location of the disclosure. We believe Form SD is an 
appropriate form since it is already used for specialized disclosure 
not included within an issuer's periodic or current reports, such as 
the disclosure required by the rule implementing Section 1502 of the 
Act.\333\ We also believe that using Form SD would facilitate 
interested parties' ability to locate the disclosure and address 
issuers' concerns about providing the disclosure in their Exchange Act 
annual reports on Forms 10-K, 20-F, or 40-F.\334\ For example, 
requiring the disclosure in a separate form, rather than in issuers' 
Exchange Act annual reports, eliminates concerns about the disclosure 
being subject to the officer certifications required by Exchange Act 
Rules 13a-14 and 15d-14 and allows the Commission to adjust the timing 
of the submission without directly affecting the broader Exchange Act 
disclosure framework.\335\
---------------------------------------------------------------------------

    \333\ Rule 13p-1 [17 CFR 240.13p-1]. See also Exchange Act 
Release No. 34-67716 (Aug. 22, 2012), 77 FR 56273 (Sept. 12, 2012) 
(``Conflict Minerals Release'').
    \334\ See also 2012 Adopting Release, nn.366-370 and 
accompanying text. Under the rules proposed in the 2010 Proposing 
Release, a resource extraction issuer would have been required to 
furnish the payment information in its annual report on Form 10-K, 
Form 20-F, or Form 40-F. Certain commenters continued to support 
this approach prior to the Proposing Release. See letter from Susan 
Rose-Ackerman (Mar. 28, 2014) (``[t]here is no need for the cost of 
a separate report.''). No commenters raised similar concerns after 
the Proposing Release.
    \335\ In this regard, we previously considered permitting the 
resource extraction payment disclosure to be filed in an amendment 
to Form 10-K, 20-F, or 40-F, as applicable, but were concerned that 
this might give the false impression that a correction had been made 
to a previous filing. See 2012 Adopting Release, n.379 and 
accompanying text.
---------------------------------------------------------------------------

    While Section 13(q) mandates that a resource extraction issuer 
include the relevant payment disclosure in an ``annual report,'' it 
does not specifically mandate the time period in which a resource 
extraction issuer must provide the disclosure. We continue to believe 
that the fiscal year is the more appropriate reporting period for the 
payment disclosure. Despite the USEITI's use of calendar year 
reporting, we believe fiscal year reporting would reduce resource 
extraction issuers' compliance costs by allowing them to use their 
existing tracking and reporting systems for their public reports to 
also track and report payments under Section 13(q). Finally, we note 
that ESTMA and the EU Directives also require reporting based on the 
fiscal year, with ESTMA using the same deadline contained in the 
proposed rules.\336\ Thus, using a fiscal year

[[Page 49385]]

reporting period should promote consistency and comparability across 
payment transparency regimes.
---------------------------------------------------------------------------

    \336\ See ESTMA, Section 9(1) (``Every entity must, not later 
than 150 days after the end of each of its financial years, provide 
the Minister with a report that discloses, in accordance with this 
section, the payments that it has made during that year.''); EU 
Accounting Directive, Art. 43(2) (``The report shall disclose the 
following information . . . in respect of the relevant financial 
year.''); EU Transparency Directive, Art. 6 (``The report shall be 
made public at the latest six months after the end of each financial 
year . . . .'').
---------------------------------------------------------------------------

    We are also adopting the proposed 150 day deadline. As discussed 
above, none of the commenters on the Proposing Release suggested a 
different deadline, and we continue to believe that it is reasonable to 
provide a filing deadline that is later than the deadline for an 
issuer's annual report under the Exchange Act. Although certain 
commenters discussed above supported allowing issuers to rely on Rule 
12b-25 to request an extension to the filing deadline, we do not 
believe that is necessary. In this regard, we note that none of the 
potential issuers that provided comments recommended including an 
extension process. Moreover, we believe 150 days is sufficient time to 
prepare timely disclosure regarding the prior fiscal year.
    Nevertheless, we do believe it is appropriate to provide 
transitional relief for recently acquired companies where such 
companies were not previously subject to the rules, as recommended by 
certain commenters.\337\ As these commenters noted, we included a 
similar provision in Rule 13p-1.\338\ The final rules therefore allow 
issuers that have acquired or otherwise obtain control over an issuer 
whose resource extraction payments are required to be disclosed under 
the final rules, and that has not previously been obligated to provide 
such disclosure pursuant to Rule 13q-1 or another ``substantially 
similar'' jurisdiction's requirements in its last full fiscal year, to 
not commence reporting payment information for the acquired company 
until the Form SD filing for the fiscal year immediately following the 
effective date of the acquisition.\339\ Unlike the targeted exemption 
for payments related to exploratory activities described in Section 
II.I.3 below, the excluded payment information is not required to be 
disclosed in the Form SD filing covering the immediately following 
fiscal year. We do not believe it is necessary to provide similar 
transitional relief for newly acquired companies that were already 
required to report such payments or companies conducting initial public 
offerings. Such companies should already be familiar with the reporting 
requirements or would have sufficient notice of them to establish 
reporting systems and prepare the appropriate disclosure prior to 
undertaking the initial public offering.
---------------------------------------------------------------------------

    \337\ See letters from Cleary and Ropes & Gray.
    \338\ Instruction (3) to Item 1.01 of Form SD states that ``[a] 
registrant that acquires or otherwise obtains control over a company 
that manufactures or contracts to manufacture products with conflict 
minerals necessary to the functionality or production of those 
products that previously had not been obligated to provide a 
specialized disclosure report with respect to its conflict minerals 
will be permitted to delay reporting on the products manufactured by 
the acquired company until the end of the first reporting calendar 
year that begins no sooner than eight months after the effective 
date of the acquisition.'' The final rules differ, however, from 
what is provided for under Rule 13p-1 because disclosure under Rule 
13p-1 occurs on a calendar year basis, not a fiscal year basis.
    \339\ See Item 2.01(b) of Form SD.
---------------------------------------------------------------------------

H. Public Filing

1. Proposed Rules
    Recognizing the purposes of Section 13(q) and the discretion 
provided by the statute, and taking into account the views expressed by 
various commenters,\340\ we proposed requiring resource extraction 
issuers to provide the resource extraction payment disclosure publicly. 
We believed that requiring public disclosure, including the issuer's 
name, would best accomplish the purpose of the statute. As explained 
more fully below, we were not persuaded by certain commenters' 
suggestion that issuers should submit their annual reports to the 
Commission confidentially and that the Commission should use those 
confidential submissions to produce an aggregated, anonymized 
compilation that would be made available to the public.\341\
---------------------------------------------------------------------------

    \340\ See Proposing Release, n.241 and accompanying text.
    \341\ See Proposing Release, Section II.G.2. See also id. at 
n.301.
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on whether issuers 
should be permitted to submit the required payment disclosure on a 
confidential basis. We also asked whether issuers should be required to 
file certain aggregate information publicly if we allow them to file 
certain disaggregated information with us confidentially.
    Numerous commenters supported, as a general policy matter, the 
concept of publicly disclosing payment information.\342\ A number of 
other commenters supported public filing in the specific manner we 
proposed.\343\ These commenters generally stated that allowing for 
confidential submission would undermine the transparency goals of 
Section 13(q) and compromise the usefulness of the disclosure. For 
example, the Department of Interior stated that permitting confidential 
disclosure would contravene the transparency objectives of the statute 
and that continued successful USEITI implementation requires the public 
disclosure of payments for all revenue streams and by project.\344\
---------------------------------------------------------------------------

    \342\ See Form Letter A and Form Letter B.
    \343\ See letters from ACEP; Bean; Department of Interior; State 
Department; Global Witness 1; Peck & Chayes; Oxfam 1; PWYP-US 1; 
Quinones; Sen. Cardin et al.; Sen. Lugar et al.; TI-USA; USAID; and 
USSIF.
    \344\ See letter from Department of Interior.
---------------------------------------------------------------------------

    On the other hand, several commenters recommended allowing for 
confidential submission of the detailed payment information, which 
would then be aggregated in an anonymized format by the Commission 
before being publicly released.\345\ These commenters stated that their 
recommended approach would reduce the burden and competitive harm 
caused by public disclosure of each issuer's specific filings. These 
commenters said that such public disclosure forces issuers to reveal 
highly confidential, commercially-sensitive information and could 
endanger the safety of an issuer's employees. They also stated that 
these harms would not be mitigated by the European Union or Canadian 
disclosure regimes because 46 of the top 100 oil and gas companies are 
listed only in the United States, with many having no reportable 
operations in Europe or Canada, or only limited operations in those 
jurisdictions conducted through subsidiaries.
---------------------------------------------------------------------------

    \345\ See letters from API 1; Chevron; ExxonMobil 1.
---------------------------------------------------------------------------

3. Final Rules
    Section 13(q) provides the Commission with the discretion to 
require public disclosure of payments by resource extraction issuers or 
to permit confidential filings.\346\ In addition, the statute directs 
the Commission to provide, to the extent practicable, a public 
compilation of this disclosure. Consistent with the proposed rules, we 
continue to believe that requiring public disclosure of each issuer's 
specific filings (including all the payment information) would best 
accomplish the purpose of the statute. Therefore, taking into account 
commenters' views, we are exercising the discretion to adopt final 
rules that require issuers to disclose the full payment information 
publicly, including the identity of the issuer.
---------------------------------------------------------------------------

    \346\ See API v. SEC, 953 F. Supp. 2d 5 (D.D.C., 2013).
---------------------------------------------------------------------------

    As discussed in the Proposing Release, several factors continue to 
influence our approach.\347\ First, the statute requires us to adopt 
rules that further the interests of international

[[Page 49386]]

transparency promotion efforts, to the extent practicable.\348\ In this 
regard, we find it significant that several existing transparency 
regimes now require public disclosure of each reporting company's 
annual report, including the identity of the company, without 
exception.\349\ A public disclosure requirement under Section 13(q) 
would further the statutory directive to support international 
transparency promotion efforts by enhancing comparability among 
companies, as it would increase the total number of companies that 
provide public, project-level disclosure. It would also be consistent 
with the objective of ensuring that the United States is a global 
``leader in creating a new standard for revenue transparency in the 
extractive industries.'' \350\
---------------------------------------------------------------------------

    \347\ We incorporate the discussion from Section II.G.2 of the 
Proposing Release.
    \348\ Section 13(q)(2)(E).
    \349\ See, e.g., ESTMA Specifications, Section 2.4 (``Reporting 
Entities are required to publish their reports on the Internet so 
they are available to the public''); EITI Standard (2013) at 6 
(requiring all EITI reports to show payments by individual company 
rather than aggregated data) and EITI Standard (2016) at Section 
2.5(c) (in addition to individual company disclosure, requiring 
disclosure of the company's beneficial owners in EITI reports by 
2020); and EU Accounting Directive Arts. 42(1) and 45(1) (requiring 
disclosure of payments to governments in a report made public on an 
annual basis and published pursuant to the laws of each member 
state.)
    \350\ 156 Cong. Rec. S5873 (July 15, 2010) (Statement of Senator 
Cardin); id. at S3815 (May 17, 2010) (Statement of Senator Cardin) 
(describing Congress's intention to create ``a historic transparency 
standard that will pierce the veil of secrecy that fosters so much 
corruption and instability in resource-rich countries'').
---------------------------------------------------------------------------

    Second, the United States is currently a candidate country under 
the EITI, which requires it to provide a framework for public, company-
by-company disclosure in the EITI report. At least with respect to 
reporting of payments to the Federal Government, requiring issuers to 
provide their annual reports publicly on Form SD is consistent with the 
U.S. Government's policy commitments under the USEITI. As noted above, 
the Department of Interior has stated that permitting confidential 
disclosure would contravene USEITI implementation.
    Third, we continue to believe that exercising our discretion to 
require public disclosure of the information required to be submitted 
under the statute is supported by the text, structure, and legislative 
history of Section 13(q).\351\ In our view, our exercise of discretion 
in this manner is consistent with the statute's use of the term 
``annual report,'' which is typically a publicly filed document,\352\ 
and Congress's inclusion of the statute in the Exchange Act, which 
generally operates through a mechanism of public disclosure.\353\ 
Furthermore, we observe that Section 13(q) requires issuers to disclose 
detailed information in a number of categories, without specifying any 
particular role for the Commission in using that information. For 
example, Section 13(q) requires disclosure of ``the business segment of 
the resource extraction issuer that made the payments'' and ``the 
currency used to make the payments.'' We generally do not believe that 
these data points would be useful to the Commission for preparing an 
aggregated, anonymized compilation as the data points would not be 
necessary to present aggregated payment information and otherwise would 
not be reflected in such a compilation. We believe that this is a 
further indication that Congress intended for the information to be 
made publicly available. We believe that this is a further indication 
that Congress intended for the information to be made publicly 
available. Finally, neither the statute's text nor legislative history 
includes any suggestion that the required payment disclosure should be 
confidential. In fact, the legislative history supports our view that 
the information submitted under the statute should be publicly 
disclosed.\354\
---------------------------------------------------------------------------

    \351\ We acknowledge that the statutory interpretation arguments 
we identify do not demonstrate an unambiguous Congressional intent 
to require public disclosure. Nevertheless, these arguments, and the 
related ambiguity, do lead us to reject the API's contrary 
contention that ``the plain language of the statute confirms that 
the Commission should require companies to disclose payment 
information to the Commission confidentially[.]'' Letter from API 1 
(emphasis added). We believe that, at a minimum, Congress provided 
the Commission with discretionary authority. As such, based on our 
assessment of the record evidence and our weighing of the various 
policy considerations, we have determined to exercise that 
discretion by requiring public disclosure of each issuer's annual 
report on Form SD. Moreover, we believe that the statutory 
interpretation considerations discussed in this Section II.H 
demonstrate that our approach is a permissible under the statute.
    \352\ See e.g., Form 10-K, Form 20-F, Form 10-Q, Form 8-K, etc.
    \353\ The Exchange Act is fundamentally a public disclosure 
statute. See generally Schreiber v. Burlington Northern, Inc., 472 
U.S. 1, 12 (1985) (``the core mechanism'' is ``sweeping disclosure 
requirements'' that allow ``shareholder choice''); Longman v. Food 
Lion, Inc., 197 F.3d 675, 682 (4th Cir. 1999) (embodies a 
``philosophy of public disclosure''); Franklin v. Kaypro Corp., 884 
F.2d 1222, 1227 (9th Cir. 1987) (``forc[es] public disclosure of 
facts''). Accordingly, the reports that public companies are 
required to submit under the Exchange Act--such as the annual report 
on Form 10-K giving a comprehensive description of a public 
company's performance--have always been made public. Adding a new 
disclosure requirement to the Exchange Act, and doing so for the 
clear purpose of fostering increased transparency and public 
accountability, is a strong indication that Congress intended for 
the disclosed information to be made public.
    \354\ See, e.g., 156 Cong. Rec. S3976 (May 19, 2010) (Statement 
of Senator Feingold) (``This amendment would require companies 
listed on U.S. stock exchanges to disclose in their SEC filings 
extractive payments made to foreign governments for oil, gas, and 
mining. This information would then be made public, empowering 
citizens in resource-rich countries in their efforts to combat 
corruption and hold their governments accountable.''); id. at S5872 
(July 15, 2010) (Sen. Cardin) (``This [amendment] will require 
public disclosure of those payments.''); see also id. at S3649 (May 
12, 2010) (proposed ``sense of Congress'' accompanying amendment 
that became Section 13(q)) (encouraging the President to ``work with 
foreign governments'' to establish their own ``domestic requirements 
that companies under [their jurisdiction] publicly disclose any 
payments made to a government'' for resource extraction) (emphasis 
added); id. at H5199 (June 29, 2010) (Joint Explanatory Statement of 
the Committee of Conference) (the amendment ``requires public 
disclosure to the SEC of any payment relating to the commercial 
development of oil, natural gas, and minerals'') (emphasis added).
---------------------------------------------------------------------------

    More fundamentally, we believe that the public release of issuers' 
annual reports is necessary to achieve the U.S. interest in providing a 
level of payment transparency that will help combat corruption and 
promote accountability in resource-rich countries, as Section 13(q) was 
intended to do. The comments that we have received, as well as our own 
consideration of the record and the views that we have received from 
other U.S. and foreign governmental agencies with expertise in this 
area, persuade us of this.\355\
---------------------------------------------------------------------------

    \355\ The API asserted that publication of each issuer's annual 
report could cause competitive harm, but that keeping the 
disclosures confidential with the public release of only an 
aggregated, anonymized compilation will ``minimize . . . the 
competitive harm to issuers by omitting the most sensitive data.'' 
See letter from API 1. We believe the targeted exemption we are 
providing in connection with payments relating to exploratory 
activities should help to mitigate such competitive harms. See 
Section II.I.3 below. In addition, as we discuss in the economic 
analysis, see Section III.B.2.c below, we believe that the other 
claimed competitive harms may be overstated. Moreover, the data that 
the API would exclude from public disclosure is, as we discuss 
above, necessary to provide the type of granular and localized 
transparency that will, in our view, help to combat corruption and 
promote accountability. We thus believe that, on balance, the 
potential competitive harms that might result from the public 
disclosure of each issuer's annual report is necessary and 
appropriate in furtherance of Section 13(q)'s objectives.
---------------------------------------------------------------------------

    We have carefully considered the API's assertion that the ``purpose 
of enabling people to hold their governments accountable for the 
revenues generated from resource development is achieved as long as 
citizens know the amount of money the government receives, not the 
companies that make each individual payment.'' \356\ We have also 
carefully considered the API's related assertion that the Commission 
has failed ``to connect [Section 13(q)'s] objectives to the specific 
approach in the proposed rule--mandatory public disclosure by issuers 
in their annual reports, as

[[Page 49387]]

opposed to confidential disclosure by issuers followed by a public 
compilation produced by the Commission.'' \357\ For the reasons 
discussed below, we do not agree with either of these assertions.
---------------------------------------------------------------------------

    \356\ See letter from API 1.
    \357\ See id.
---------------------------------------------------------------------------

    We believe that disclosing an issuer's identity is important to 
help achieve the objectives of Section 13(q). In this regard, we note 
that one of the proponents of the API's approach stated that ``[f]or 
the API model to work,'' each payer's identity must be revealed.\358\ 
We further note that, after a decade of experience, the EITI (to which 
the API and many of its members are active participants) has now 
determined that company-specific, project-level disclosure is necessary 
to further the EITI's goals.\359\
---------------------------------------------------------------------------

    \358\ See letter from ASP.
    \359\ See Proposing Release, Section II.E.1, n.194, and Section 
II.G.2.
---------------------------------------------------------------------------

    Furthermore, as we explained in the Proposing Release, the record 
supports a number of specific ways in which company-specific public 
disclosures can facilitate the twin goals of helping to reduce 
corruption in the extractives sector and promoting governmental 
accountability. For example, public disclosure of company-specific, 
project-level payment information may help assist citizens, civil 
society groups, and others to monitor individual issuer's contributions 
to the public finances and ensure firms are meeting their payment 
obligations. We explained that such data may also help various actors 
ensure that the government is properly collecting and accounting for 
payments.\360\ We also explained that, relatedly, an important 
additional benefit of company-specific and project-level transparency 
is that it would act as a strong deterrent to issuers underpaying 
royalties' or other monies owed. We believe the record also supports 
the potential that the public disclosure of company-specific, project-
level data may reduce the willingness of resource extraction issuers to 
participate in deals where they believe the revenues may be corruptly 
diverted from the government coffers.\361\ With our decision to include 
contractually required social and community payments among the required 
disclosures, we now perceive an additional potential benefit of 
company-specific, project-level public disclosure.\362\ Local 
communities may be able to ensure that they are in fact receiving the 
promised payments and that those payments are being used by the 
governments receiving the funds for the benefit of the community. We 
believe much the same is true with respect to contractual obligations 
regarding in-kind infrastructure development.\363\
---------------------------------------------------------------------------

    \360\ See Proposing Release, Section I.E.2.
    \361\ See letter from Publish What You Pay--US (second of three 
letters on Mar. 8, 2016) (``PWYP-US 3'') (explaining that a resource 
extraction issuer took part in a transaction in Nigeria knowing that 
the revenues were going to be diverted from the Nigerian government 
to a Nigerian oil minister, and explaining that aggregation and 
anonymization of such payments would have made it more difficult for 
the public and civil society ``to trace where the payment ended up 
or even find out that it had been made''). See generally U.S. Senate 
Permanent Subcommittee on Investigations, Committee on Government 
Affairs, Money Laundering and Foreign Corruption: Enforcement and 
Effectiveness of the Patriot Act, Case Study Involving Riggs Bank 
Report, at 98-111 (July 14, 2004) (providing examples of the roles 
that resource extraction companies can play in facilitating the 
suspect or corrupt practices of foreign officials seeking to divert 
resource extraction payments that belong to the government).
    \362\ See Section II.C above.
    \363\ See, e.g., letter from PWYP-US 1 (explaining that in 
Equatorial Guinea, ``the government has used social payments as 
cover under which to approach U.S.-listed oil and gas companies 
about financing projects that appear to have been motivated by the 
whims of individual government officials and had little to do with 
social development. . . . This raises concerns that social payments, 
if allowed to remain opaque, could be misused to channel corrupt 
payments, special favors, and kickbacks, creating a gray zone of 
illicit payments that may not be easily monitored or policed by the 
[Foreign Corrupt Practices Act].''). See also letter from ASP 
(``Even with an explicit legal prohibition on bribery, however, it 
is not always clear what constitutes corruption, as contracts can be 
written that favor individuals or companies. . . '').
---------------------------------------------------------------------------

    We note that the API asserts that ``Section 13(q) was passed to 
increase the accountability of governments, not to force public 
companies to pay more to develop natural resources, or to expose them 
to activism by special interest groups.'' \364\ While we recognize the 
API's point, we nonetheless believe that its view of the anti-
corruption and accountability objectives underlying Section 13(q) is 
unduly narrow. In our view, the U.S. foreign policy interest in helping 
citizens to hold their governments accountable for the management of 
the public's natural resources (and preventing corruption in connection 
with the extraction of those resources) \365\ includes, among other 
things, providing transparency to help ensure that the transactions 
that the government enters are producing a return that the citizens 
believe is appropriate, and providing transparency to citizens and 
members of civil society to help ensure that the transactions do not 
involve suspect or corrupt payment arrangements. We thus agree with the 
position advanced by USAID that ``[i]t is through disaggregated data, 
which includes the identity of the payer and the location and type of 
the project, that transparency will be promoted.'' \366\ As USAID 
explained in its comment:
---------------------------------------------------------------------------

    \364\ See letter from API 1.
    \365\ See 156 Cong. Rec. S3816 (May 17, 2010) (Sen. Lugar) 
(explaining that Section 13(q) is intended to ``help empower 
citizens to hold their governments to account for the decisions made 
by their governments in the management of valuable oil, gas, and 
mineral resources and revenues''). See also id. at S5873 (July 15, 
2010) (Sen. Cardin) (explaining that Section 13(q) will help 
citizens ``ensure that their country's natural resource wealth is 
used wisely for the benefit of the entire nation and for future 
generations'').
    \366\ See letter from USAID. See also letter from BHP 
(``Transparency by governments and companies alike regarding revenue 
flows from the extraction of natural resources in a manner which is 
meaningful, practical, and easily understood by stakeholders reduces 
the opportunity for corruption.'')

    [T]ransparency about corporate payments to governments is a 
prerequisite to the effective engagement of citizens to ensure that 
such revenues are managed responsibly and for the benefit of a 
country's citizens. Such engagement is only possible if the citizens 
know which company is paying what kind of payment to which 
government entity relating to which project in which location. 
Aggregate data about multiple resources, projects, or geographic 
locations does not allow citizens of a particular[ ] region to speak 
up and insist that the revenues associated with the project 
impacting them be used for their benefit, rather than to personally 
benefit potentially corrupt government officials.\367\
---------------------------------------------------------------------------

    \367\ See letter from USAID. See also id. (``Aggregated 
information that contains numerous companies' payment histories does 
not allow for citizens to understand or engage with extraction 
companies operating in their geographical area.''); letter from 
State Department (expressing ``approval'' of the proposed rule's 
``company-specific, project-level public disclosure'' provisions and 
explaining that ``[t]his level of transparency required by the 
proposed rule is key for ensuring that citizens have the necessary 
means to hold their governments accountable. . . . [T]he rule's 
requirements directly advance the United States' foreign policy 
interests in increasing transparency and reducing corruption in the 
oil, gas, and minerals sectors and strengthen the United States' 
credibility and ability to fight corruption more broadly. . . .).

    In addition, we believe that providing an issuer's Form SD filings 
to the public through the searchable, online EDGAR system, which will 
enable users of the information to produce their own up-to-date 
compilations in real time, is both consistent with the goals of the 
statute and the Commission's obligation, to the extent practicable, to 
``make available online, to the public, a compilation of the 
information required to be submitted'' by issuers.\368\ Under this

[[Page 49388]]

approach, all the filings will be separately searchable on EDGAR and 
the information provided can be extracted and viewed on an individual 
basis or as a compilation. Indeed, this approach provides users of the 
disclosure with more current and immediately available information than 
the API's proposed compilation, which would provide only one annual 
update.\369\ That said, we appreciate that some commenters have 
asserted that the statutory language could be read to require that the 
Commission periodically make available its own compilation of the 
information that issuers provide in their annual reports on Form 
SD.\370\ Accordingly, we are including a provision in the final rules 
providing that the Commission's staff will periodically make a separate 
public compilation of the payment information submitted in issuers' 
Forms SD available online. Under the final rules, the staff may 
determine the form, manner, and timing of each compilation, except that 
no information included therein may be anonymized.\371\
---------------------------------------------------------------------------

    \368\ The legislative history surrounding the adoption of 
Section 13(q) indicates that Congress likely did not intend for the 
public compilation requirement to serve as a substitute for the 
public disclosure of an issuer's annual reports. Rather, the public 
compilation requirement, added to an earlier version of the 
legislation that became Section 13(q), was intended for the 
convenience of the users of that data--many of whom were not seeking 
the information for purposes of investment activity and thus would 
potentially be unfamiliar with locating information in the extensive 
annual reports that issuers file. In the earlier versions of the 
draft legislation, the resource extraction payment disclosures were 
required to be made in the annual report that each issuer was 
already required to file under the securities laws. See, e.g., 
Extractive Industries Transparency Disclosure Bill (H.R. 6066) (May 
2008) (``requir[ing] that each issuer required [to] file an annual 
report with the Commission shall disclose in such report'' the 
resource extraction payments that the issuer makes) (emphasis 
added). For the convenience of non-investor users of the data, the 
provision included a separate section entitled ``Public Availability 
of Information'' that provided in pertinent part: ``The Securities 
and Exchange Commission shall, by rule or regulation, provide that 
the information filed by all issuers . . . be compiled so that it is 
accessible by the public directly, and in a compiled format, from 
the Web site of the Commission without separately accessing . . . 
the annual reports of each issuer filing such information.'' Id. 
(emphasis added). As the proposed legislative language was later 
being incorporated into the Exchange Act, the Commission's staff 
gave technical advice that led to the modification of the 
legislative text to provide the Commission with additional 
flexibility to permit the disclosures in an annual report other than 
``the annual report'' that issuers already file so as to avoid 
unnecessarily burdening issuers. See 156 Cong. Rec. S3815 (May 17, 
2010) (Statement of Senator Cardin) (``We have been working with a 
lot of groups on perfecting this amendment, and we have made some 
changes that will give the SEC the utmost flexibility in defining 
how these reports will be made so that we get the transparency we 
need without burdening the companies.''). Our decision to utilize 
Form SD rather than to require the disclosures in an issuer's annual 
report, when coupled with the functionality that the EDGAR system 
provides, in our view sufficiently addresses the Congressional 
concern that originally led to the separate requirement of a 
publicly available compilation.
    \369\ Our recommended approach would provide investors with 
information that would be immediately available to all users upon 
filing. In contrast, under the API Proposal, users of the 
information could have to wait to access the information for months 
after an issuer files its Form SD (when the Commission publishes its 
next periodic compilation). For example, assume that the Commission 
issues a compilation annually on December 1st of each year. If an 
issuer files its annual Form SD on January 1st, the information in 
that report would not be publicly available for another eleven 
months if the Forms SD were held confidentially. Under the approach 
being adopted, however, the information will be made publicly 
available as soon as the Form SD is filed on EDGAR.
    \370\ See letter from API 1 (discussing the compilation 
requirements in Section 13(q)(3)).
    \371\ See Rule 13q-1(e). We do not anticipate that the staff 
will produce such a compilation more frequently than once a year.
---------------------------------------------------------------------------

    In sum, we believe that public disclosure of each issuer's Form SD 
is important to further Section 13(q)'s foreign policy objectives of 
helping to reduce corruption and enhance the ability of citizens to 
hold their governments accountable for the management of the natural 
resources in their country and the use of the revenues generated by 
those resources.\372\ We therefore have exercised our discretion under 
Section 13(q) to require issuers to disclose publicly their Forms SD.
---------------------------------------------------------------------------

    \372\ The API contends that, ``[b]y requiring disaggregated, 
contract-level public disclosures,'' our rule ``will make it more 
difficult for parties seeking information about how much governments 
are ultimately receiving to obtain that information.'' Letter from 
API 1. The API claims that, by contrast, a ``public compilation that 
aggregates the total amount of money paid to governments for oil, 
gas, and minerals'' would be ``more informative.'' Id. We note that, 
in advancing this contention, the API appears to assume that the 
Section 13(q) disclosures are designed only to provide information 
about how much governments are ultimately receiving. Nevertheless, 
as we have described above, we believe that the transparency 
provided by the disaggregated, project-level disclosures 
significantly advances broader anti-corruption and accountability 
goals. Even so, we note that to the extent a particular user is 
focused on learning about how much money governments are ultimately 
receiving, EDGAR's functionality will allow them to generate this 
information from the filed annual reports.
---------------------------------------------------------------------------

I. Exemption From Compliance

1. Proposed Rules
    In the Proposing Release, we noted that many commenters previously 
had requested exemption from Section 13(q)'s disclosure requirements, 
in particular in cases where the required payment disclosure is 
prohibited under the host country's laws. We noted that some commenters 
had identified specific countries that they claimed prohibit disclosure 
while other commenters challenged those statements. Given commenters' 
conflicting positions and representations, and consistent with the EU 
Directives and ESTMA, we did not propose any blanket or per se 
exemptions. Instead, we indicated that we would consider using our 
existing authority under the Exchange Act to provide exemptive relief 
at the request of issuers, if and when warranted.\373\ We stated our 
belief that a case-by-case approach to exemptive relief using our 
existing authority was preferable to either adopting a blanket 
exemption or providing no exemptions. We also stated that, among other 
things, such an approach would permit us to tailor the exemptive relief 
to the particular facts and circumstances presented, such as by 
permitting some alternative form of disclosure that might comply with 
the foreign country's law or by phasing out the exemption over an 
appropriate period of time.\374\
---------------------------------------------------------------------------

    \373\ See Section 36(a) of the Exchange Act (15 U.S.C. 78mm(a)).
    \374\ For example, if a resource extraction issuer were 
operating in a country that enacted a law that prohibited the 
detailed public disclosures required under our proposal, the 
Commission could potentially issue a limited exemptive order (in 
substance and/or duration). The order could be tailored to either 
require some form of disclosure that would not conflict with the 
host country's law and/or provide the issuer with time to address 
the factors resulting in non-compliance.
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on whether a case-by-
case exemptive process was a better alternative than providing a rule-
based blanket exemption for specific countries or other circumstances, 
or providing no exemptions. We also asked whether any foreign laws 
prohibit the disclosure that would be required by the proposed rules, 
or if there was any information that had not been previously provided 
by commenters that supports an assertion that such prohibitions exist 
and are not limited in application. We also asked whether the EU 
Directives' and ESTMA's lack of an exemption for situations when 
disclosure is prohibited under host country law had presented any 
problems for resource extraction issuers subject to those reporting 
regimes.
    A number of commenters supported the proposed approach.\375\ One of 
these commenters, while ``strongly support[ing]'' our approach, urged 
the Commission to consider existing commercial relationships when 
responding to requests for exemptive relief.\376\ This commenter noted 
that contractual confidentiality clauses usually allow the contractual 
parties to provide confidential information requested by court order or 
regulatory

[[Page 49389]]

bodies, but condition such disclosure on the maintenance of 
confidentiality by the receiving entity.
---------------------------------------------------------------------------

    \375\ See letters from ACTIAM et al. (Calvert separately 
commenting that it preferred no exemption despite being a signatory 
to this letter); Bean; Cleary; and Petrobras.
    \376\ See letter from Petrobras.
---------------------------------------------------------------------------

    Many other commenters supported the proposed approach, but 
preferred not providing any exemptions.\377\ A number of these 
commenters recommended granting an exemption only if the request 
relates to a foreign law prohibition pre-dating the passage of Section 
1504.\378\ Commenters also disputed claims that foreign law 
prohibitions exist or that they would have competitive harm.\379\
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    \377\ See letters from ACEP; Calvert; Global Witness 1; Oxfam 1; 
PWYP-US 1; Sen. Cardin et al.; Sen. Lugar et al.; TI-USA; and USSIF.
    \378\ See letters from Sen. Cardin et al.; Sen. Lugar et al.
    \379\ See letters from Global Witness (Mar. 8, 2016) (``Global 
Witness 2'') (``Nor is there any persuasive evidence of the 
existence of secrecy laws that are in conflict with Section 13(q), 
as the Commission itself determined in 2012, and as we and others 
have argued.''); Natural Resource Governance Institute (Second of 
two letters on Feb. 16, 2016) (``NRGI 2'') (``In practice, there is 
therefore no blanket exclusion of covered companies from awards in 
[Angola, Cameroon, China, and Qatar]. Our findings further show that 
the covered companies have not been significantly affected in their 
ability to secure contracts in [those] countries after the adoption 
of Section 1504.''); McCarthy (stating that Angola's Production 
Sharing Agreements provide a standard exception from confidentiality 
to comply with any applicable laws or regulations and disputing any 
competitive harm to companies required to report payments to host 
governments in Angola, Cameroon, China, or Qatar); Oxfam 2 (noting 
the disclosure of payments to governments in China and Qatar in the 
RDS Report and providing additional evidence of a lack of foreign 
law prohibition on payment disclosure under Qatari law); Oxfam-ERI 
(``No country prohibits disclosure, and the Commission should not 
grant any categorical exemptions.''); PWYP-US 1 (``There are no 
foreign laws prohibiting disclosure of the information required 
under Section 13(q).''); TI-USA (``[W]hile it has been alleged that 
Angolan law prohibits the disclosure of resource extraction payments 
. . . Statoil publicly reports such payments to the Angolan 
government.''); PWYP-US 5 (noting the disclosure of payments to 
governments in China and Qatar in the Total Report and Tullow 
Report).
---------------------------------------------------------------------------

    Numerous commenters recommended not providing any exemptions.\380\ 
For example, the Department of Interior noted that federal leases for 
natural resource development on federal lands and waters are public and 
do not contain confidentiality provisions. This commenter stated that, 
consistent with the contract transparency provisions under the EITI 
Standard, USEITI reporting includes disclosure of these leases and that 
providing an exemption would contravene the transparency objectives of 
Section 13(q) and the Federal Government.
---------------------------------------------------------------------------

    \380\ See Form Letter A; Form Letter B and letters from 
Department of Interior; Peck & Chayes; Quinones; and NRGI 1.
---------------------------------------------------------------------------

    Several commenters supported blanket exemptions instead of the 
proposed case-by-case approach.\381\ These commenters sought exemptions 
for disclosure that would violate a host country's laws, conflict with 
the terms of existing contracts, or reveal commercially sensitive 
information. These commenters also sought an exemption for disclosure 
that would jeopardize the safety of an issuer's personnel.\382\ They 
were concerned that the cost of not receiving an exemption, 
particularly when a foreign law prohibition was in place, could be very 
high if the issuer was required to cease operations in the host country 
as a result of the prohibition and liquidate its fixed assets at a 
steep discount. They also noted the volatility of the regions in which 
they operate, the potential for terrorist attacks, and the existence of 
confidentiality provisions in older resource extraction agreements.
---------------------------------------------------------------------------

    \381\ See letters from API 1; Chevron; ExxonMobil 1; and 
Nouveau.
    \382\ See 2012 Adopting Release, n.69 and accompanying text. See 
also letters from API 1 and Chevron. Other commenters opposed such 
an exemption and stated that increased transparency would instead 
increase safety for employees. See 2012 Adopting Release, n.70 and 
accompanying text. See also letter from Oxfam-ERI.
---------------------------------------------------------------------------

    The API and certain other industry commenters sought various 
blanket exemptions.\383\ With respect to an exemption for foreign law 
prohibitions on disclosure, these commenters asserted that both Qatar 
and China prohibit the required disclosure.\384\ They were also 
concerned that it would be difficult to obtain timely exemptive relief 
on a case-by-case basis if exemptions would have to be granted by the 
full Commission. To address these concerns, they recommended the 
following three alternatives to the proposed approach, in order of 
preference: (1) Exempting issuers from reporting payments in any 
country whose laws prohibit the disclosure; (2) exempting issuers from 
reporting payments in any country whose laws prohibited the 
disclosures, so long as those laws existed before the Commission 
adopted its rules; and (3) exempting issuers from reporting payments in 
specific countries where the risk to issuers is particularly acute.
---------------------------------------------------------------------------

    \383\ See letters from API 1; Chevron; and ExxonMobil 1.
    \384\ We note in this regard that the API did not reiterate its 
previous assertions that Angola and Cameroon have laws prohibiting 
the disclosure of payment information.
---------------------------------------------------------------------------

    As for disclosure that would reveal commercially sensitive 
information, these commenters recommended allowing issuers to redact 
payment information temporarily until a later time when the disclosure 
would be less harmful (e.g., after news of a new discovery is public 
knowledge). The API explained that such an exemption would be 
particularly appropriate for exploratory activities and new finds, but 
acknowledged that the commercial terms of older projects are generally 
publicly known (even if the contracts are not technically publicly 
disclosed), thus suggesting that an exemption would generally not be 
necessary to protect commercially sensitive information for older 
projects. They also recommended exempting disclosure in situations 
where revealing payment information would breach contractual 
obligations that existed before Congress passed Section 13(q) or when 
it might jeopardize the safety of an issuer's employees (including 
physical harm or criminal prosecution) or the national security of a 
host nation.
    In addition to these broader recommendations about the types of 
exemptions that should be included in the rules, commenters also made 
recommendations with respect to the process for granting exemptions. A 
few commenters were concerned that the exemption requests would be 
considered in a public forum, which could result in disclosure of 
competitively sensitive information or violate host country law.\385\ 
One of these commenters requested, at a minimum, that the rules follow 
an exemptive approach where any claimed exemption would require issuers 
to make reasonable efforts to obtain permission for disclosure, file 
legal opinions supporting any non-disclosure, and be subject to review 
by the Commission, but would otherwise be self-executing.\386\ Another 
commenter recommended using a no-action letter process with delegated 
authority to the Division of Corporation Finance, which it believed 
would be both flexible and practical.\387\
---------------------------------------------------------------------------

    \385\ See letters from Cleary and ExxonMobil 1.
    \386\ See letter from ExxonMobil 1.
    \387\ See letter from Cleary.
---------------------------------------------------------------------------

    Numerous commenters recommended a public process for exemption 
applications.\388\ Many of these commenters specifically called for a 
process that involved notice and comment.\389\ Some of them 
specifically recommended requiring issuers to apply for exemptions 
using Exchange Act Rule 0-12.\390\ Some of these commenters

[[Page 49390]]

recommended that the rules provide clear guidance on the criteria that 
would be used to evaluate applications for exemptions.\391\ One of them 
also recommended an instruction clarifying that exemptions will be 
granted rarely and only for extremely compelling reasons.\392\
---------------------------------------------------------------------------

    \388\ See letters from ACEP; ACTIAM et al.; Bean; Calvert; 
Global Witness 1; Oxfam 1; PWYP-US 1; Sen. Cardin et al.; Sen. Lugar 
et al.; TI-USA; and USSIF.
    \389\ See letters from ACEP; Bean; Calvert; Global Witness 1; 
Oxfam 1; PWYP-US 1; Sen. Cardin et al.; Sen. Lugar et al.; TI-USA; 
and USSIF.
    \390\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \391\ See letters from Bean and USSIF.
    \392\ See letter from Bean.
---------------------------------------------------------------------------

    A number of commenters made specific recommendations for the types 
of supporting documentation the rules should require from those seeking 
an exemption due to a foreign law prohibition on disclosure.\393\ These 
commenters recommended requiring the text of the relevant law, a legal 
opinion identifying the conflicts with the disclosure rules, and a 
description of the steps taken by the issuer to obtain permission from 
the host country to disclose, such as waivers, exceptions, or 
exemptions. Some of these commenters also recommended requiring a 
description of the penalties or sanctions for violating the foreign 
legal provision, including information about whether the prohibition 
has been enforced in the past.\394\ One of them also recommended 
requiring that the issuer provide the text of the foreign law and the 
legal opinion in English and also provide the date of enactment or 
promulgation of the foreign law or rule.\395\
---------------------------------------------------------------------------

    \393\ See letters from ACEP; Bean; Global Witness 1; Oxfam 1; 
PWYP-US 1; Sen. Cardin et al. and Sen. Lugar et al.
    \394\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \395\ See letter from Bean.
---------------------------------------------------------------------------

3. Final Rules
    While we continue to believe, for the reasons discussed below, that 
a case-by-case approach to providing exemptions under our existing 
authority is generally preferable in this context, we are also 
including a targeted exemption for payments related to exploratory 
activities.\396\ We believe this exemption, as described and discussed 
below, should help mitigate any potential competitive harm that issuers 
might experience while not materially reducing the overall benefits of 
the disclosure to its users. To address any other potential bases for 
exemptive relief, beyond the exemptions for payments related to 
exploratory activities and recently acquired companies, issuers may 
apply for exemptions on a case-by-case basis using, as recommended by 
certain commenters,\397\ the procedures set forth in Rule 0-12 of the 
Exchange Act.\398\ This approach will allow the Commission to determine 
if and when exemptive relief may be warranted and how broadly it should 
apply, based on the specific facts and circumstances presented in the 
application.\399\
---------------------------------------------------------------------------

    \396\ See Item 2.01(b) of Form SD. As discussed above in Section 
II.G.3, the final rules also include transitional relief for certain 
recently acquired companies.
    \397\ See letters from ACEP; Global Witness 1; Oxfam; and PWYP-
US 1. See also note 388 and accompanying text.
    \398\ 17 CFR 240.0-12.
    \399\ For example, an issuer claiming that a foreign law 
prohibits the required payment disclosure under Section 13(q) will 
be able to make the case that it would suffer substantial commercial 
or financial harm if relief is not granted. An issuer could also 
apply for an exemption in situations where disclosure would conflict 
with the terms of a material preexisting contract, reveal 
commercially sensitive information not otherwise available to the 
public, or have a substantial likelihood of jeopardizing the safety 
of an issuer's personnel, among other possible bases for an 
exemption. The Commission could then determine the best approach to 
take based on the facts and circumstances, including denying an 
exemption, providing an individual exemption, providing a broader 
exemption for all issuers operating in a particular country, or 
providing some other appropriately tailored exemption. See letters 
from ACEP; ACTIAM et. al.; Bean; Calvert; Cleary; Oxfam 1; Oxfam-
ERI; Petrobras; PWYP-US 1; Sen. Cardin et al.; Sen. Lugar et al.; 
TI-USA and USSIF (each supporting a case-by-case exemptive approach, 
although some expressed a preference for not providing any 
exemptions).
---------------------------------------------------------------------------

    With respect to the request for a blanket exemption in countries 
where the law may prohibit the disclosure, however, we believe that 
there continues to be sufficient uncertainty in the record such that 
this approach is not necessary or appropriate at this time. For 
example, while the API initially identified four countries whose laws 
would prohibit Section 13(q) disclosures, its most recent comment 
letter listed only two of those countries as currently prohibiting such 
disclosures.\400\ In addition, with respect to those two remaining 
countries, we note that several large resource extraction issuers have 
recently made payment disclosures related to those jurisdictions.\401\ 
We think this state of uncertainty, which at a minimum raises questions 
about the existence and scope of disclosure prohibitions in these 
foreign jurisdictions, counsels against adoption of any blanket 
exemptions for foreign law conflicts at this time. Moreover, as more 
companies begin to report under the EU Directives and ESTMA, the 
existence of alleged conflicts between those disclosure regimes and 
foreign laws may be clarified prior to any reports being due under the 
rules we are adopting today.\402\ This, along with the fact that 
issuers will have a two-year period before any reports are due under 
our rules in which to submit an exemptive application (along with 
appropriate supporting materials), further supports the conclusion that 
a case-by-case exemptive approach is preferable.
---------------------------------------------------------------------------

    \400\ See letter from API 1.
    \401\ See note 299 above.
    \402\ For example, reports under the United Kingdom's 
implementation of the EU Directives will be due by November 2016 at 
the latest (with certain reports due by June 2016) covering payments 
made in fiscal 2015; and reports under Canada's ESTMA will be due 
for many issuers (i.e., for those issuers with fiscal years ending 
December 31, 2016) in May 2017 covering payments made in 2016. 
Significantly, we note that several reports that already have been 
filed pursuant to the EU Directives have disclosed payments made to 
the governments of Angola, China, and Qatar, which commenters 
previously indicated prohibited such disclosure. See BHP Report 
(China); Shell Report (China and Qatar), Statoil Report (Angola); 
and Total Report (Angola, China, Qatar). See also note 302 above. As 
additional reports are filed, we expect to gain further insight into 
the permissibility and feasibility of disclosure in these and other 
jurisdictions.
---------------------------------------------------------------------------

    Separately, we also believe that the case-by-case exemptive 
approach is significantly less likely than a blanket approach to 
encourage foreign governments to enact laws prohibiting the Section 
13(q) disclosures. A blanket exemption could lead a foreign government 
contemplating such a law to conclude that enactment of the law would 
have its intended effect of preventing the disclosures. With a case-by-
case exemptive approach, however, that foreign government would not be 
able to reach that conclusion, as it would face a number of 
uncertainties concerning the potential results of enacting such a law. 
Specifically, the foreign government would not have any basis to assume 
that the Commission would grant exemptive relief, and, even if it did 
so, whether such relief would apply on a permanent basis or in a more 
limited fashion (such as a grandfathering provision or a time-limit to 
allow issuers to divest their interests in the country in an orderly 
manner). This uncertainty about whether the law would have its intended 
effect, in our view, should help to discourage foreign governments from 
adopting such a law. Relatedly, we note that one commentator opposed 
the case-by-case exemptive approach because of the uncertainty that it 
may cause issuers.\403\ While we appreciate this concern, we believe 
that it is on balance outweighed by the countervailing considerations 
discussed above, and elsewhere in this release and the Proposing 
Release, which counsel against our adopting most of the blanket 
exemptions that commenters proposed.
---------------------------------------------------------------------------

    \403\ See letter from API 1 (``issuers need the certainty of 
knowing how the rule will affect them now'').
---------------------------------------------------------------------------

    With respect to the request for an exemption to prevent the 
disclosure of

[[Page 49391]]

commercially sensitive information, we are persuaded that a targeted 
exemption for payments made in connection with exploratory activities, 
in line with commenters' suggestions, is appropriate.\404\ 
Specifically, issuers will not be required to report payments related 
to exploratory activities in the Form SD for the fiscal year in which 
payments are made but can instead delay reporting such payments in the 
Form SD until the fiscal year following the fiscal year in which the 
payments were made. In this regard, we believe that the likelihood of 
competitive harm (in regards to a new discovery) from the disclosure of 
payment information related to exploratory activities diminishes over 
time starting from when the exploratory activities on the property or 
any adjacent property have begun.\405\
---------------------------------------------------------------------------

    \404\ See letter from API 1 (asserting as an example of 
competitive harm payments to local governments in connection with 
``high-potential exploratory territory'' and maintaining that case-
by-case exemptions would be insufficient to protect against 
competitive harm in such situations).
    \405\ See note 406 below.
---------------------------------------------------------------------------

    For purposes of this exemption, we consider payments to be related 
to exploratory activities if they are made as part of the process of 
identifying areas that may warrant examination or examining specific 
areas that are considered to have prospects of containing oil and gas 
reserves, or as part of a mineral exploration program. In all cases, 
however, exploratory activities are limited to activities conducted 
prior to the development or extraction of the oil and gas or minerals 
that are the subject of the exploratory activities. Furthermore, this 
targeted exemption is not permitted for payments related to exploratory 
activities on the property or any adjacent property once the issuer has 
commenced development or extraction activities anywhere on the 
property, on any adjacent property, or on any property that is part of 
the same project.
    In providing this exemption, we also considered the fact that the 
total payment streams from the first year of exploration that would be 
covered by the exemption should often be relatively small compared to, 
for example, the annual payment streams that would likely occur once an 
issuer commences development and production. Given this likelihood, we 
believe, on balance, that any diminished transparency as a result of 
the one-year delay in reporting of such payments that we are permitting 
is justified by the potential competitive harms that we anticipate may 
be avoided as a result of this exemptive relief. Nevertheless, we have 
limited the exemption to one year because we believe that the 
likelihood of competitive harm related to a new discovery from 
disclosing the payment information diminishes over time once 
exploratory activities on the property or any adjacent property have 
begun.\406\
---------------------------------------------------------------------------

    \406\ We appreciate that the exploratory phase may vary from 
project to project, and that this variance can depend on such 
considerations as the geographic area in which the exploration is 
being undertaken and the type of resource being sought. In 
determining to provide a one-year reporting delay, we looked to 
considerations in the oil and gas industry in particular as oil and 
gas industry commenters asserted a specific need for the exemptive 
relief. We understand that the exploratory period for oil and gas 
generally involves a seismic survey/analysis phase followed by an 
exploratory drilling phase. We further understand that, while the 
time periods for those activities can vary considerably, conducting 
seismic surveys and analyzing the data can take six months or more, 
while (at least for conventional onshore hydrocarbons) exploratory 
drilling and site clearance can potentially take a similar length of 
time. These considerations lead us to believe that one year is an 
appropriate period for a delay in reporting exploratory payments.
---------------------------------------------------------------------------

    Beyond these accommodations for exploratory activities and certain 
recently acquired companies, we are not persuaded that we should adopt 
exemptions for other purposes in the final rules. As a threshold 
matter, we note that many commenters advanced credible arguments 
challenging the claims raised by industry commenters for broad 
exemptive relief in these areas.\407\ Further, we are mindful that 
global resource extraction payment transparency touches on a host of 
issues that are constantly changing and evolving and as such do not 
lend themselves to static exemptive regimes. In this regard, we note 
the enactment of significant transparency laws in major economic 
markets, the expanding implementation of the EITI, the increasing 
prevalence of voluntary payment disclosure, evolution in the terms 
typically included in agreements with host governments, and the 
constantly changing geopolitical security landscape.\408\ As such, we 
believe that crafting exemptions that balance the transparency goals of 
Section 13(q) with the myriad concerns that could arise is best done 
through a flexible facts-and-circumstances based approach. Furthermore, 
although we have included only two targeted exemptions in the final 
rules, nothing prevents the Commission from using its existing 
exemptive authority to provide broader relief if the facts and 
circumstances should warrant such action in the future.\409\
---------------------------------------------------------------------------

    \407\ See Section II.I.2 above.
    \408\ We note in this regard that, in contrast to the 2012 
Rules, commenters have not reiterated previous assertions that 
Cameroon and Angola prohibit the disclosure of resource extraction 
payments.
    \409\ See Section 36(a) of the Exchange Act (15 U.S.C. 78mm(a)). 
We contemplate relying on Section 36(a) and the application process 
set forth in Rule 0-12 as the principal means of considering 
exemptive relief from the requirements of the final rules, except 
that, where exigent circumstances warrant, the staff, acting 
pursuant to delegated authority from the Commission, may rely on 
Section 12(h) of the Exchange Act (15 U.S.C. 78l(h) for the limited 
purpose of providing interim relief while the Commission is 
considering a Section 36(a) exemptive application.
---------------------------------------------------------------------------

    A separate but related consideration is that developing objective 
criteria for exemptive relief for potential competitive harm (beyond 
the exploratory phase) or safety that could be uniformly applied would 
be difficult. In our view, issues related to such competitive and 
safety concerns are inherently case-specific, requiring an analysis of 
the underlying facts and circumstances. We are therefore concerned that 
adopting a broad exemption with respect to competitive concerns (beyond 
the exploratory phase) or safety concerns could result in issuers 
applying the exemption in an overly broad way. Specifically, the 
effective and appropriate utilization of broad exemptions in these 
areas would be dependent on the independent assessment and good faith 
implementation by issuers, potentially producing inconsistent 
application, if not overuse.\410\ With a case-by-case exemptive 
approach, however, the Commission can ensure that exemptions are 
afforded only where the facts and circumstances warrant.
---------------------------------------------------------------------------

    \410\ Cf. generally letter from API 1 (noting potential 
difficulties when rule text is ``susceptible to varying 
interpretations'' among issuers).
---------------------------------------------------------------------------

    Finally, we are not persuaded that there is a need for an exemption 
in the final rules for contracts that may prohibit the disclosure. We 
note that various commenters opposing such an exemption provided 
evidence indicating that many contracts allow for disclosure of payment 
information where it is required by law.\411\ Moreover, we

[[Page 49392]]

believe that the two-year period that we are providing issuers before 
the reporting obligation takes effect should allow most issuers a 
sufficient opportunity to obtain the necessary modifications to 
existing contracts so that they can make the required disclosures. With 
respect to any future contracts that issuers may enter, we anticipate 
that issuers can and should include express provisions permitting them 
to make the disclosures required under Section 13(q).
---------------------------------------------------------------------------

    \411\ Several commenters provided persuasive evidence 
demonstrating that exceptions to confidentiality for laws or stock 
exchange requirements that require disclosure are frequently a 
standard component of oil, gas and mining contracts. See letter from 
PWYP-US 3. For instance, we understand that the Association of 
International Petroleum Negotiators (AIPN) has included this type of 
exception to confidentiality in its model contract used by its 
members for the last two decades. See letter from Oxfam America 
(Mar. 20, 2012) (``Oxfam 2 (pre-proposal)'') (noting that the AIPN 
Model Form Confidentiality Agreement authorizes the disclosure of 
otherwise confidential information that is required ``under 
applicable law, including by stock exchange regulations or by a 
governmental order, decree, regulation or rule.''). Another 
commenter provided a database of over 800 contracts from 73 
countries and reported that over half of the contracts in the 
database explicitly allow for disclosure when required by law. See 
letter from OpenOil UG (Oct. 26, 2015) (``OpenOil (pre-proposal)'').
---------------------------------------------------------------------------

    Commenters were also divided about whether the exemptive 
application process should be public (with notice and comment) or 
confidential. We agree that public input can be beneficial in 
understanding the complexities of the resource extraction industry. 
Accordingly, Rule 0-12 allows the Commission to provide notice in the 
Federal Register and to receive public comment on applications for 
exemptions when it deems such an approach appropriate. Notwithstanding 
our appreciation for public input, we also do not believe it is 
appropriate to require an issuer to reveal the very information it 
seeks to protect in order to apply for an exemption. In this regard, we 
note that although an applicant would need to describe the particular 
payment disclosure it seeks to omit and the specific facts and 
circumstances that warrant an exemption, it need not include specific 
payment amounts to support its application. We believe that in most 
cases the application could present sufficient information to describe 
the circumstances warranting an exemption and the corresponding harm 
without revealing the precise information that the issuer seeks to keep 
confidential. We also note that Rule 0-12 does allow applicants to 
request temporary confidential treatment to the extent provided under 
Rule 81,\412\ which may further alleviate concerns by delaying public 
access to the exemptive application for up to 120 days from the time of 
the Commission's response. Further, issuers will be permitted to 
withdraw their application if it appears to the staff that the request 
for confidential treatment should be denied, in which case the 
application would remain in the Commission's files but would not be 
made public.\413\
---------------------------------------------------------------------------

    \412\ 17 CFR 200.81.
    \413\ 17 CFR 200.81(b). The information could be subject to a 
request made pursuant to the Freedom Of Information Act (FOIA). In 
this regard, however, we note that FOIA provides an exemption from 
public release for ``trade secrets and commercial or financial 
information obtained from a person and privileged or confidential.'' 
See 5 U.S.C. 552(b)(4).
---------------------------------------------------------------------------

    Finally, we note that Rule 0-12 requires an application to be made 
in writing, including ``any supporting documents necessary to make the 
application complete.'' Commenters were divided on whether the 
Commission should require certain specified documentation as part of 
the application or whether we should follow a more flexible, non-
prescriptive approach, where the registrant would initially determine 
what supporting information is appropriate. We believe a non-
prescriptive, flexible process is more appropriate given that we are 
adopting a case-by-case approach to exemptions that is driven by 
particular facts and circumstances. We do note, however, that the 
Commission, through the Division of Corporation Finance, may request, 
as appropriate, supporting documentation such as a legal opinion, the 
text of applicable foreign laws (translated as necessary), 
representations as to the public availability of the information in 
question, or a description of the steps taken by the issuer to obtain 
permission to disclose.\414\ Failure to provide such information upon 
request could cause the application to be deemed incomplete or denied. 
We note that, as with any exemptive application, the burden is on the 
applicant to demonstrate that such relief is necessary and appropriate 
in the public interest.
---------------------------------------------------------------------------

    \414\ See Rule 0-12(a), (f) [17 CFR 240.0-12(a), (f)].
---------------------------------------------------------------------------

J. Alternative Reporting

1. Proposed Rules
    As noted in the Proposing Release, several jurisdictions have 
implemented resource extraction payment disclosure laws since the 2012 
Rules.\415\ Around the time of the Proposing Release, the USEITI also 
published its first report.\416\ In light of these developments and 
with a view towards reducing compliance costs, we proposed a provision 
that would allow issuers to meet the requirements of the proposed rules 
by providing disclosure that complies with a foreign jurisdiction's 
rules or that meets the USEITI's reporting requirements, if the 
Commission has determined that those rules or requirements are 
substantially similar to the rules adopted under Section 13(q).\417\ 
The Proposing Release contemplated that the Commission would be able to 
make a determination about the similarity of a foreign jurisdiction's 
or the USEITI's disclosure requirements either unilaterally or pursuant 
to an application submitted by an issuer, jurisdiction, or other 
party.\418\
---------------------------------------------------------------------------

    \415\ See Section I.C above.
    \416\ See note 87 above.
    \417\ Proposed Item 2.01(b) of Form SD.
    \418\ See Proposing Release, Section II.G.4.
---------------------------------------------------------------------------

    We proposed requiring resource extraction issuers to file the 
substantially similar report as an exhibit to Form SD with a statement 
in the body of its filing that it was relying on the accommodation and 
identifying the alternative reporting regime for which the report was 
prepared (e.g., a foreign jurisdiction or the USEITI).
2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on whether we should 
include an alternative reporting process that would allow for an issuer 
that is subject to the reporting requirements of a foreign jurisdiction 
or the USEITI to submit those reports in satisfaction of our 
requirements. In addition, we solicited comment on whether a 
``substantially similar'' standard was appropriate and which criteria 
should apply when evaluating the similarity of another jurisdiction's 
reporting requirements. We also solicited comment on various aspects of 
the procedures surrounding an alternative reporting process, such as 
whether the Commission should unilaterally make the determination, what 
types of parties should be allowed to submit an application for 
alternative reporting, what supporting evidence should be required, and 
what application procedures should be implemented. For example, we 
requested comment on whether Exchange Act Rule 0-13 would provide 
appropriate procedures for requesting alternative reporting. We also 
solicited comment on whether the Commission should recognize certain 
foreign reporting requirements or the USEITI reporting framework as 
substantially similar when the final rule is adopted.
    All of the commenters that addressed this aspect of the Proposing 
Release supported the concept of alternative reporting in some 
form.\419\ Despite general support, several commenters recommended 
using a standard different from ``substantially similar,'' such as 
``equivalent,'' \420\ ``substantially equivalent,'' \421\ ``broadly 
similar,'' \422\ or

[[Page 49393]]

``broadly comparable.'' \423\ Several commenters also recommended 
criteria that the Commission should focus on when assessing the 
similarity of other regimes. For example, one commenter recommended 
using the two criteria set forth in Canada's substitution policy.\424\ 
A variety of other recommendations were made by other commenters, such 
as comparing (1) the types of payments that are required to be 
disclosed; (2) the types of payment recipients (including subnational 
governments and entities controlled by the government); (3) whether 
project-level disclosure is required and, if so, the definition of 
``project;'' (4) whether the disclosure must be publicly filed and 
whether it includes the identity of the issuer; (5) whether 
subsidiaries under the control of and consolidated by the issuer are 
reported; (6) the threshold for de minimis payments; (7) whether the 
disclosure must be provided using an interactive data format that 
includes electronic tags; (8) the availability of exemptions from 
reporting; (9) frequency of reporting; (10) anti-evasion measures; and 
(11) the availability of liability or penalties for violations of the 
disclosure requirements.\425\
---------------------------------------------------------------------------

    \419\ See letters from ACEP; ACTIAM et al.; API 1; Bean; BHP; 
BP; Calvert; Chevron; Cleary; Department of Interior; Encana; 
ExxonMobil 1; Global Witness 1; Oxfam 1; PWYP-US 1; RDS; Ropes & 
Gray; Sen. Cardin et al.; Sen. Lugar et al.; and Total.
    \420\ See letter from Cleary.
    \421\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \422\ See letter from BP.
    \423\ Id.
    \424\ See letter from Cleary. For a discussion of Canada's 
substitution policy, see Section I.C.2 above.
    \425\ No one commenter recommended all of these factors. See, 
e.g., letters from PWYP-US 1 and Encana.
---------------------------------------------------------------------------

    One commenter recommended that the Commission not require issuers 
to convert data into a different interactive data format as a condition 
to alternative reporting.\426\ Another commenter recommended that the 
EU Directives and ESTMA be deemed substantially similar requirements 
despite not requiring inclusion of a tag for the particular resource 
subject to commercial development.\427\
---------------------------------------------------------------------------

    \426\ See letter from BHP.
    \427\ See letter from Encana.
---------------------------------------------------------------------------

    Other commenters made specific recommendations on the procedures 
that the Commission should follow when making an alternative reporting 
determination. For example, several commenters supported using the 
procedures set forth in Exchange Act Rule 0-13,\428\ while other 
commenters supported a less prescriptive approach.\429\ A few 
commenters also recommended allowing issuers, foreign jurisdictions, 
and industry groups to submit applications supporting the substantial 
similarity of other jurisdictions' requirements.\430\
---------------------------------------------------------------------------

    \428\ See letters from Calvert and PWYP-US 1. See also letters 
from ACEP; Global Witness 1; and Oxfam 1.
    \429\ See letters from Cleary and Ropes & Gray.
    \430\ See letters from Cleary and Ropes & Gray.
---------------------------------------------------------------------------

    A number of commenters called for the Commission to recognize 
substantially similar alternative reporting regimes in the adopting 
release.\431\ Most of those commenters recommended recognizing the EU 
Directives \432\ and/or Canada.\433\ Commenters also recommended the UK 
specifically \434\ or Norway.\435\ The Department of Interior 
recommended allowing for alternative reporting under the USEITI, with 
several other commenters supporting that recommendation.\436\
---------------------------------------------------------------------------

    \431\ See letters from ACEP; BHP; BP; Cleary; Encana; Global 
Witness 1; Oxfam 1; PWYP-US 1; RDS; Ropes & Gray; and Total.
    \432\ See letters from ACEP; BHP (recommending recognizing the 
EU's reporting system for a finite period of five years); BP; 
Cleary; Encana; Global Witness 1; Oxfam 1; PWYP-US 1; and Total.
    \433\ See letters from Cleary; Encana; and PWYP-US 1. See also 
letters from ACEP; Global Witness 1; and Oxfam 1.
    \434\ See letters from BP; Cleary; and RDS. The letters from BP 
and Cleary also recommended the European Union more generally.
    \435\ See letters from Cleary and PWYP-US 1. See also letters 
from ACEP; Global Witness 1; and Oxfam 1.
    \436\ See letters from BP; Calvert; and PWYP-US 1.
---------------------------------------------------------------------------

3. Final Rules
a. Requirements for Alternative Reports
    We are adopting an alternative reporting mechanism similar to what 
we proposed whereby issuers will be able to meet the requirements of 
the final rules by providing disclosure that complies with a foreign 
jurisdiction's or the USEITI's resource extraction payment disclosure 
requirements if they are deemed ``substantially similar'' by the 
Commission.\437\ As noted above, commenters broadly supported the 
concept of alternative reporting despite differing opinions on how it 
should be applied. The framework for alternative reporting in the final 
rules allows a resource extraction issuer that has already prepared a 
report pursuant to ``substantially similar'' requirements to avoid 
costs associated with having to prepare a separate report meeting the 
requirements of our disclosure rules.\438\ We are adopting the proposed 
``substantially similar'' standard because we are not persuaded that 
the alternative standards recommended by commenters would allow the 
Commission to evaluate better whether a regime requires sufficient 
disclosure to serve the underlying goals of Section 13(q) while also 
avoiding unnecessary costs.\439\
---------------------------------------------------------------------------

    \437\ See Item 2.01(c) of Form SD.
    \438\ See Section III.C.2 below for a discussion of these costs.
    \439\ See notes 420-423 above and accompanying text.
---------------------------------------------------------------------------

    We note that the alternative reporting provision is generally 
consistent with the approach taken in the EU Directives and ESTMA and 
should promote international transparency efforts by incentivizing 
foreign countries that are considering adoption of resource extraction 
payment disclosure laws to provide a level of disclosure that is 
consistent with our rules and the other major international 
transparency regimes. Under the final rules, an issuer may only use an 
alternative report for an approved foreign jurisdiction or regime if 
the issuer is subject to the resource extraction payment disclosure 
requirements of that jurisdiction or regime and has made the report 
prepared in accordance with that jurisdiction's requirements publicly 
available prior to filing it with the Commission.\440\ An issuer 
choosing to avail itself of this accommodation must submit as an 
exhibit to Form SD the same report that it previously made publicly 
available in accordance with the approved alternative jurisdiction's 
requirements.\441\ The issuer must include a statement in the body of 
Form SD that it is relying on this accommodation and identifying the 
alternative reporting regime for which the report was prepared.\442\
---------------------------------------------------------------------------

    \440\ See Item 2.01(c)(1)-(2) of Form SD.
    \441\ See Item 2.01(c)(2). The format of the report may differ 
to the extent necessary due to the conditions placed by the 
Commission on the alternative reporting accommodation. See id. For 
example, the report may not have been originally submitted in the 
home jurisdiction in XBRL or may not have been in English.
    \442\ See Item 2.01(c)(3) of Form SD.
---------------------------------------------------------------------------

    In addition, the alternative reports must be tagged using 
XBRL.\443\ Although a commenter recommended not requiring issuers to 
convert data into a different interactive data format to qualify for 
alternative reporting,\444\ we believe that requiring a consistent data 
format for all reports filed with the Commission will improve the 
usefulness of the compilations created by the Commission and will 
enhance the ability of users to create their own up-to-date 
compilations in real time. We also do not believe that this requirement 
will add significantly to the costs of alternative reporting given that 
most of these costs are associated with collecting the required 
information, not the particular data format.
---------------------------------------------------------------------------

    \443\ See Item 2.01(c)(4) of Form SD.
    \444\ See letter from BHP.
---------------------------------------------------------------------------

    An issuer relying on the alternative reporting accommodation must 
also provide a fair and accurate English

[[Page 49394]]

translation of the entire report if prepared in a foreign 
language.\445\ Project names may be presented in their original 
language in addition to the English translation of the project name if 
the issuer believes such an approach would facilitate identification of 
the project by users of the disclosure.\446\
---------------------------------------------------------------------------

    \445\ See Item 2.01(c)(5) of Form SD. Rule 306 of Regulation S-T 
(17 CFR 232.306) requires that all electronic filings and 
submissions be in the English language. If a filing or submission 
requires the inclusion of a foreign language document, Rule 306 
requires that the document be translated into English in accordance 
with Securities Act Rule 403(c) (17 CFR 230.403(c)) or Exchange Act 
Rule 12b-12(d) (17 CFR 240.12b-12(d)). Both of these rules require 
the submission of a fair and accurate English translation of an 
entire foreign language document that is being submitted as an 
exhibit or attachment if the document consists of certain specified 
material. If the foreign language document does not consist of such 
material, and the form permits it, a fair and accurate English 
language summary may be provided in lieu of an English translation. 
Given the level of specificity of the disclosure and the electronic 
tagging required under Rule 13q-1 and Form SD, we do not believe it 
would be appropriate to permit an English summary of a foreign 
language document that is being provided as an alternative report. 
We have therefore added a requirement to Form SD requiring a 
registrant to provide a fair and accurate English translation of the 
entire foreign language document being submitted as an exhibit to 
Form SD pursuant to the alternative reporting provision.
    \446\ See Item 2.01(c)(5) of Form SD.
---------------------------------------------------------------------------

    As noted in the Proposing Release, the ``substantially similar'' 
standard would not require the alternative reporting regime to be 
equivalent or identical. Under the final rules, the Commission could 
consider the following criteria, among others, to make its 
determination that another reporting regime is substantially similar: 
(1) The types of activities that trigger disclosure; (2) the types of 
payments that are required to be disclosed; (3) whether project-level 
disclosure is required and, if so, the definition of ``project;'' (4) 
whether the disclosure must be publicly filed and whether it includes 
the identity of the issuer; and (5) whether the disclosure must be 
provided using an interactive data format that includes electronic 
tags. When considering whether to allow alternative reporting based on 
a foreign jurisdiction's reporting requirements, the Commission will 
likely also consider whether disclosure of payments to subnational 
governments is required and whether there are any exemptions allowed 
and, if so, whether there are any conditions that would limit the grant 
or scope of the exemptions. This non-exclusive list of factors does not 
preclude the Commission from considering other factors, such as those 
recommended in the comments described above.\447\
---------------------------------------------------------------------------

    \447\ See Section II.J.2 above.
---------------------------------------------------------------------------

    As discussed above in Section I.C.2, Canada allows for substituted 
reports to be filed according to the approved substitute jurisdiction's 
deadline if the Department of Natural Resources Canada is notified by 
email prior to the expiration of ESTMA's 150 day deadline.\448\ In 
light of the requirement in the final rules that the alternative report 
be publicly available in the alternative jurisdiction prior to the 
submission of the alternative report to the Commission, we believe that 
an approach similar to Canada's will increase the usefulness of the 
alternative reporting accommodation.\449\ Therefore, an issuer filing 
an alternative report prepared pursuant to foreign reporting regimes 
recognized by the Commission as substantially similar may follow the 
reporting deadline in the alternative jurisdiction.\450\ To do so, 
however, it must submit a notice on Form SD-N on or before the due date 
of its Form SD indicating its intent to submit the alternative report 
using the alternative jurisdiction's deadline.\451\ To deter abuse of 
this accommodation, the final rules provide that if an issuer fails to 
submit such notice on a timely basis, or submits such a notice but 
fails to submit the alternative report within two business days of the 
alternative jurisdiction's deadline, it will become ineligible for the 
alternative reporting accommodation for the following fiscal year.\452\
---------------------------------------------------------------------------

    \448\ See note 80-81 above and accompanying text.
    \449\ Although Canada uses the same 150 day deadline as the 
final rules, the EU Directives leave the annual deadline to the 
discretion of the member states. See note 56 above and accompanying 
text.
    \450\ See Item 2.01(c)(6) of Form SD.
    \451\ See Item 2.01(c) of Form SD.
    \452\ Id.
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b. Recognition of EU Directives, Canada's ESTMA, and the USEITI as 
Alternative Reporting Regimes
    In conjunction with our adoption of the final rules, we are issuing 
an order recognizing the EU Directives, Canada's ESTMA, and the USEITI 
in their current forms as substantially similar disclosure regimes for 
purposes of alternative reporting under the final rules, subject to 
certain conditions. We have determined that these three disclosure 
regimes are substantially similar to the final rules.\453\ For example, 
all three regimes require annual, public disclosure, including the 
identity of the filer; do not provide for any blanket exemptions; 
include the same or similar activities when defining commercial 
development of oil, natural gas, or minerals; require project-level 
reporting at the contract level (or in the case of the USEITI, calls 
for project-level reporting consistent with the European Union and 
Commission definitions of ``project''); cover similar payment types; 
cover similar controlled entities and subsidiaries; and require foreign 
subnational payee reporting. Although we acknowledge differences 
between these regimes and the final rules, we do not believe that such 
differences, as identified and discussed above,\454\ support reaching a 
different conclusion, particularly in light of the requirements we are 
imposing on alternative reporting.\455\ We note that, among those 
commenters who addressed the issue, there was agreement that the 
Commission should allow alternative reporting under the EU Directives, 
Canada's ESTMA, and the USEITI.\456\ This further persuades us that it 
is appropriate at this time to grant these three regimes alterative 
reporting status in their current form.
---------------------------------------------------------------------------

    \453\ For a lengthier discussion of significant aspects of these 
regimes, see Section I.C above.
    \454\ See Section II.C.3 above (discussing variations in the 
treatment of CSR payments under the final rules, the EU Directives, 
and ESTMA) and Section II.E.3 above (discussing when multiple 
agreements may be aggregated as a single project under the final 
rules and how that differs from the approach used by the EU 
Directives and the ESTMA Specifications). We recognize that our 
decision to include CSR payments within the list of payment types 
specifically covered by the final rules reflects a difference from 
how CSR payments are treated under the European Union and Canadian 
disclosure regimes. On balance, considering the benefits to users 
and issuers from permitting alternative reporting and the fact that 
the recent trend has been toward inclusion of such payments (the 
EITI revised its standard to include CSR payments after the EU and 
Canadian disclosure standards were developed), we do not feel this 
difference should prevent us from recognizing the EU Directives and 
ESTMA as ``substantially similar'' reporting regimes at this time. 
In weighing whether to recognize these reporting regimes as 
substantially similar, we also have considered that several 
companies reporting under these regimes may provide disclosure about 
CSR payments. See Section II.C.3 above. Furthermore, the ESTMA 
Guidance indicates that CSR payments disclosure may be required in 
Canada in certain circumstances, despite not being specifically 
listed as a covered payment type. See note 212 and accompanying 
text.
    \455\ For example, the final rules require alternative reports 
to be submitted in XBRL format. See Section II.J.3.a above.
    \456\ See letters from ACEP; BHP (recommending recognizing the 
EU's reporting system for a finite period of five years); BP; 
Calvert; Cleary; Encana; Global Witness 1; Oxfam 1; PWYP-US 1; and 
Total.
---------------------------------------------------------------------------

    Although we are recognizing the USEITI's requirements as 
substantially similar, we are mindful of the more limited scope of 
those requirements. For example, the USEITI does not cover payments to 
foreign governments and currently uses calendar year reporting instead 
of fiscal year reporting.\457\ Due to these limitations, as set forth 
in the accompanying order, USEITI reports will only satisfy the 
disclosure requirements in Rule 13q-1 for payments made by an issuer to 
the

[[Page 49395]]

Federal Government, not to foreign governments. An issuer will have to 
supplement its USEITI report by disclosing in its Form SD all payment 
information to foreign governments required by the final rules. In 
addition, the issuer may need to supplement its USEITI report so that 
the required payment information is provided on a fiscal year 
basis.\458\ We note that the requirement to provide fiscal year 
reporting will have limited impact on issuers with a December 31 fiscal 
year end. In this regard, the Department of Interior has stated that 
``many'' U.S. EITI reporting companies use the calendar year as their 
fiscal year.\459\
---------------------------------------------------------------------------

    \457\ See Section I.C.3 above.
    \458\ For example, in addition to covering any gaps between the 
calendar year and fiscal year, the issuer will need to disclose any 
series of payments that exceeded the de minimis threshold on a 
fiscal year basis rather than on a calendar year basis. See Section 
II.C above for a discussion of the de minimis threshold.
    \459\ See letter from Department of Interior.
---------------------------------------------------------------------------

c. Application Procedures
    With respect to applications to request recognition of other 
jurisdictions' payment transparency rules as substantially similar, 
applicants should follow the procedures set forth in Rule 0-13 of the 
Exchange Act, which permits an application to be filed with the 
Commission to request a ``substituted compliance order'' under the 
Exchange Act. Although applicants should follow the procedures set 
forth in Rule 0-13(b) through (i), applications may be submitted by 
issuers, governments, industry groups, and trade associations.\460\ The 
application must include supporting documents and will be referred to 
the Commission's staff for review. The Commission must publish a notice 
in the Federal Register that a complete application has been submitted 
and allow for public comment. The Commission may also, in its sole 
discretion, schedule a hearing before the Commission on the matter 
addressed by the application.
---------------------------------------------------------------------------

    \460\ See Rule 13q-1(c).
---------------------------------------------------------------------------

K. Exhibits and Interactive Data Format Requirements

1. Proposed Rules
    The proposed rules required a resource extraction issuer to file 
the required disclosure on EDGAR in an XBRL exhibit to Form SD. 
Consistent with Section 13(q), the proposed rules required issuers to 
submit the payment information using electronic tags--a taxonomy of 
defined reporting elements--that identify, for any payment required to 
be disclosed:
     The total amounts of the payments, by category; \461\
---------------------------------------------------------------------------

    \461\ For example, categories of payments could be bonuses, 
taxes, or fees.
---------------------------------------------------------------------------

     the currency used to make the payments;
     the financial period in which the payments were made;
     the business segment of the resource extraction issuer 
that made the payments;
     the government that received the payments and the country 
in which the government is located; and
     the project of the resource extraction issuer to which the 
payments relate.\462\
---------------------------------------------------------------------------

    \462\ See proposed Item 2.01(a) of Form SD.
---------------------------------------------------------------------------

    In addition to the electronic tags specifically required by the 
statute, we proposed requiring issuers to provide and tag:

     The type and total amount of payments made for each 
project,
     the type and total amount of payments for all projects 
made to each government;
     the particular resource that is the subject of 
commercial development, and
     the subnational geographic location of the project.

    For purposes of identifying the subnational geographic location of 
the project, we proposed an instruction specifying that issuers must 
provide information regarding the location of the project that is 
sufficiently detailed to permit a reasonable user of the information to 
identify the project's specific, subnational location.\463\ We stated 
that, depending on the facts and circumstances, this could include the 
name of the subnational governmental jurisdiction(s) (e.g., state, 
province, county, district, municipality, territory, etc.) or the 
commonly recognized subnational geographic or geologic location (e.g., 
oil field, basin, canyon, delta, desert, mountain, etc.) where the 
project is located, or both. We anticipated that more than one 
descriptive term would likely be necessary when there are multiple 
projects in close proximity to each other or when a project does not 
reasonably fit within a commonly recognized, subnational geographic 
location. We also stated that when considering the appropriate level of 
detail, issuers may need to consider how the relevant contract 
identifies the location of the project.\464\
---------------------------------------------------------------------------

    \463\ See proposed Instruction 3 to Item 2.01 of Form SD.
    \464\ See id.
---------------------------------------------------------------------------

    We also proposed an instruction to Form SD that would have required 
issuers to report the amount of payments made for each payment type and 
the total amount of payments made for each project and to each 
government in U.S. dollars or in the issuer's reporting currency if not 
U.S. dollars.\465\ The proposed rules allowed a resource extraction 
issuer to calculate the currency conversion in one of three ways: (1) 
By translating the expenses at the exchange rate existing at the time 
the payment is made; (2) by using a weighted average of the exchange 
rates during the period; or (3) based on the exchange rate as of the 
issuer's fiscal year end.\466\ A resource extraction issuer was also 
required to disclose the method used to calculate the currency 
conversion.\467\
---------------------------------------------------------------------------

    \465\ See proposed Instruction 2 to Item 2.01 of Form SD. 
Currently, foreign private issuers may present their financial 
statements in a currency other than U.S. dollars for purposes of 
Securities Act registration and Exchange Act registration and 
reporting. See Rule 3-20 of Regulation S-X [17 CFR 210.3-20].
    \466\ See proposed Instruction 2 to Item 2.01 of Form SD.
    \467\ See id.
---------------------------------------------------------------------------

    Consistent with the statute, the proposed rules required a resource 
extraction issuer to include an electronic tag that identified the 
business segment of the resource extraction issuer that made the 
payments. We proposed defining ``business segment'' as the reportable 
segments used by the resource extraction issuer for purposes of 
financial reporting.\468\
---------------------------------------------------------------------------

    \468\ See proposed Item 2.01(c)(1) of Form SD. The term 
``reportable segment'' is defined in FASB ASC Topic 280, Segment 
Reporting, and IFRS 8, Operating Segments.
---------------------------------------------------------------------------

    We also proposed that to the extent payments, such as corporate 
income taxes and dividends, are made for obligations levied at the 
entity level, issuers could omit certain tags that may be inapplicable 
(e.g., project tag, business segment tag) for those payment types as 
long as they provide all other electronic tags, including the tag 
identifying the recipient government.\469\
---------------------------------------------------------------------------

    \469\ See 2012 Adopting Release, n.432 and accompanying text.
---------------------------------------------------------------------------

    Finally, we noted that Section 13(q)(3) directs the Commission, to 
the extent practicable, to provide a compilation of the disclosure made 
by resource extraction issuers. To satisfy this requirement, the 
proposed rules required the disclosures to be filed on EDGAR in an XBRL 
exhibit, which would allow the data to be searched and extracted by 
users.
2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on a variety of 
matters related to the format of the disclosure, the proposed tags, and 
the related

[[Page 49396]]

instructions. For example, we asked how the total amount of payments 
should be reported when payments are made in multiple currencies and 
whether the three proposed methods for calculating the currency 
conversion described above provide issuers with sufficient options to 
address any possible concerns about compliance costs, the comparability 
of the disclosure among issuers, or other factors. We also asked 
whether XBRL is the most suitable interactive data standard, whether 
``business segment'' should be defined differently, and whether the 
non-statutory tags we proposed were appropriate. In addition, we 
requested comment on whether the proposed ``reasonable user'' approach 
to describing the geographic location of the project provided 
sufficient detail to users of the disclosure when combined with the 
other tagged information. Finally, we solicited comment on whether the 
proposed approach to making a compilation available was consistent with 
Section 13(q)(3) or whether a different compilation would be necessary.
    All of the commenters that addressed the proposed interactive data 
format supported using XBRL.\470\ One of them generally recommended 
that the rules provide issuers with the flexibility to present 
information in either the body of the Form SD or on an exhibit, as well 
as the flexibility to decide whether to summarize or include selected 
information contained in the exhibit in the base Form SD.\471\
---------------------------------------------------------------------------

    \470\ See letters from AICPA; PWYP-US 1; and XBRL US.
    \471\ See letter from Ropes & Gray.
---------------------------------------------------------------------------

    One commenter specifically supported the proposed approach to 
describing the geographic location of projects.\472\ Another commenter 
recommended that, rather than relying on the concept of ``a reasonable 
user,'' the rules require geographic locations to be disclosed as 
specified in the agreement or multiple agreements which have been used 
to establish the project for reporting purposes.\473\ By contrast, the 
commenters that supported the API Proposal disagreed with tagging the 
geographic location of the project at a level below the largest 
subnational political jurisdiction.\474\ As described above, those 
commenters recommended using ISO codes to standardize geographic 
location tagging down to the first subnational geographic level.\475\
---------------------------------------------------------------------------

    \472\ See letter from Department of Interior.
    \473\ See letter from PWYP-US 1.
    \474\ See Section III.E. above.
    \475\ Id.
---------------------------------------------------------------------------

    Several commenters requested changes or clarifications to the data 
tagging requirements.\476\ One of them recommended defining ``business 
segment'' to mean the subsidiary or other entity under the control of 
the issuer that makes payments to a government because that entity 
often has a different name from the parent issuer that is reporting to 
the Commission.\477\ This commenter stated that providing the name of 
the entity making the payment would aid accountability and provide 
users with the means to follow up locally when compared to the 
Commission's proposed approach of defining ``business segment'' as a 
reportable segment used for purposes of financial reporting. Other 
commenters disagreed with this suggestion believing that it was outside 
the scope of the statute.\478\
---------------------------------------------------------------------------

    \476\ See letters from AICPA; Encana; Petrobras; PWYP-US 1; and 
XBRL US.
    \477\ See letter from PWYP-US 1.
    \478\ See letters from ExxonMobil 2 and Petrobras.
---------------------------------------------------------------------------

    Another commenter, noting our guidance on entity-level disclosure, 
requested clarification of whether it could omit the project tag with 
respect to its export activities, which it stated were not project-
specific.\479\ Another commenter was unclear on whether the tag for the 
``particular resource that is the subject of commercial development'' 
should be assigned to each project or whether it should be assigned to 
each government payee.\480\ This commenter recommended that, if the 
particular resource must be disclosed, the tag should be associated 
with a project rather than a government payee. This commenter also 
noted that the proposed rules did not specify the level of granularity 
at which the ``particular resource'' must be disclosed.\481\ This 
commenter also had concerns that reporting payments at a particular 
resource level would pose challenges for some issuers as development 
projects often target more than one resource as the subject of 
development and not all payments to a government payee are determined 
or dependent on a particular resource (i.e., property taxes).
---------------------------------------------------------------------------

    \479\ See letter from Petrobras.
    \480\ See letter from Encana.
    \481\ For example, this commenter sought clarification of 
whether the ``particular resource'' disclosure should be the primary 
resource targeted, such as oil, natural gas, or natural gas liquids, 
or if it should be the resource product types, such as coal bed 
methane, natural gas liquids, bitumen, heavy oil, light crude oil, 
and natural gas excluding natural gas liquids.
---------------------------------------------------------------------------

    Another commenter recommended adopting the AICPA Audit Data 
Standards within the new XBRL taxonomy. This commenter stated that 
using these standards would enable issuers and their auditors to share 
``business operational, business and accounting data,'' creating 
potential cost savings by reducing duplicative data standards used by 
issuers and thereby leveraging the cost of complying with the rule for 
a range of purposes including internal and external use in the audit 
function.\482\
---------------------------------------------------------------------------

    \482\ See letter from AICPA.
---------------------------------------------------------------------------

    Another commenter recommended incorporating in EDGAR robust 
validation of the data submitted in the XBRL exhibits for both 
technical structure as well as content. \483\ This commenter stated 
that doing so would ensure that the information provided to users is 
accurate and reliable. This commenter also recommended publishing the 
data as a set of CSV files to simplify automated analysis for some 
users, similar to what the Commission does for XBRL financial data. 
Generally this commenter thought that the Commission should seek input 
on the draft taxonomy through a public review and comment process prior 
to implementing the reporting requirements. Noting our statement in the 
Proposing Release that Inline XBRL \484\ was another possible 
alternative for providing the information in interactive data format, 
the commenter questioned whether Inline XBRL would improve the 
usability of the data, or whether it merely adds an additional burden 
on filers to convert their data to HTML as well as XBRL.
---------------------------------------------------------------------------

    \483\ See letter from XBRL US.
    \484\ Inline XBRL would allow registrants to file the required 
information and data tags in one document rather than requiring a 
separate exhibit for the interactive data.
---------------------------------------------------------------------------

    One commenter stated that the three proposed methods for 
calculating the currency conversion when payments are made in multiple 
currencies provides issuers with sufficient options to address any 
possible concerns about compliance costs and comparability of the 
disclosure among issuers.\485\
---------------------------------------------------------------------------

    \485\ See letter from Petrobras.
---------------------------------------------------------------------------

    Finally, several commenters specifically supported the proposed 
approach as meeting the statutory requirements to provide a 
compilation.\486\ Other commenters stated that the proposed approach 
abandons the Commission's statutory obligation to create a 
compilation.\487\ We discuss our approach to providing a compilation in 
Section II.H.3 above.
---------------------------------------------------------------------------

    \486\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
    \487\ See letters from API 1; Chevron; ExxonMobil 1.
---------------------------------------------------------------------------

3. Final Rules
    We are adopting the proposed requirements regarding interactive 
data

[[Page 49397]]

exhibits and tagging with limited modifications. The approach we are 
adopting today provides the disclosure elements in a machine readable 
(electronically-tagged) XBRL format that should enable users to search, 
extract, aggregate, and analyze the information in a manner that is 
most useful to them. As we discussed in the Proposing Release, this 
approach will allow the information received from issuers to be 
converted by EDGAR and other commonly used software and services into 
an easily-readable tabular format.\488\ The final rules do not require 
Inline XBRL. Given the nature of the disclosure required by the final 
rules, which is primarily an exhibit with tabular data, we do not 
believe that Inline XBRL would improve the usefulness or presentation 
of the required disclosure. As noted above, commenters supported using 
XBRL as the interactive data format but did not similarly support 
Inline XBRL, with one commenter specifically questioning its usefulness 
in this context. Unlike the comments we received on the 2010 Proposing 
Release, none of commenters on the Proposing Release recommended that 
the Commission allow issuers to use an interactive data format of their 
preference.\489\
---------------------------------------------------------------------------

    \488\ The use of XBRL will allow the Commission to improve the 
quality and usefulness of the data compilation on EDGAR by including 
data validation measures to improve data quality. Given the 
disbursement ledger nature of the Resource Extraction data, using 
existing disbursement taxonomies would be relevant both for 
minimizing implementation costs and also potentially enhancing the 
reusability by different consumers (e.g., management, internal 
auditors, external auditors, regulators). The AICPA Audit Data 
Standards include disbursement ledger taxonomies and thereby may be 
useful in this effort.
    \489\ See Section II.G.5 of the Proposing Release.
---------------------------------------------------------------------------

    Commenters were divided on how issuers should tag the subnational 
geographic location of the project.\490\ On the one hand, those 
supporting the API Proposal favored using the first order subnational 
geographic location. Some of those commenters recommended using ISO 
codes to standardize references to those subnational geographic 
locations. These commenters were generally concerned that the proposed 
method for describing the location of a project would cause confusion 
and could potentially reduce transparency. On the other hand, many 
other commenters, including those expressing the greatest interest in 
using the disclosure to further the transparency goals of the statute, 
disagreed with an approach that would only disclose the geographic 
location of a project at the highest level of political organization 
below the national level. For the reasons discussed in Section II.E.3 
above, we agree with the latter commenters that additional granularity 
is needed to accomplish the goals underlying Section 13(q). 
Nevertheless, we are sympathetic to the concern that differing 
descriptions of a project's location might make it more difficult to 
sort the data compiled in EDGAR. For this reason, we believe it is 
appropriate to add an additional tag for the subnational geographic 
location that uses the ISO codes suggested by commenters.\491\ In this 
way, users of the disclosure would be able to sort the data in the more 
generalized fashion that industry commenters, such as the API, said 
would be more useful while also having access to the more specific data 
that many civil society organizations have supported. With respect to 
the suggestion of one commenter to use the geographic locations 
disclosed in the agreement(s) associated with a project, we believe the 
proposed approach accomplishes the same purpose while providing the 
issuer additional flexibility.\492\
---------------------------------------------------------------------------

    \490\ Commenters were also divided on how to name the project 
for the ``project of the resource extraction issuer to which the 
payments relate'' tag. We address issues relating to the definition 
of ``project'' in Section II.E. above.
    \491\ Similarly, to enhance comparability, we are requiring 
issuers to use the ISO 3166 code, if available, to identify the 
country in which a payee government is located. See Instruction 3 to 
Item 2.01 of Form SD.
    \492\ See letter from PWYP-US 1. See also letters from ACEP; 
Global Witness 1; and Oxfam 1.
---------------------------------------------------------------------------

    With respect to the requirement to provide and tag the type and 
total amount of payments made for each project and to each government, 
we are adopting the three currency conversion methods as proposed.\493\ 
As discussed above, the one commenter that addressed these methods 
thought that the options that were provided were sufficient to address 
concerns about compliance costs and comparability of disclosure.\494\ 
Nevertheless, to avoid confusion, we are requiring that an issuer must 
choose a consistent method for all such currency conversions within a 
particular Form SD filing.\495\
---------------------------------------------------------------------------

    \493\ See Instruction 2 to Item 2.01 of Form SD.
    \494\ See letter from Petrobras.
    \495\ See Instruction 2 to Item 2.01 of Form SD.
---------------------------------------------------------------------------

    With respect to the required business segment tag, despite the 
concerns of one commenter, we are adopting the proposed definition of 
``business segment.'' \496\ We believe defining business segment in a 
manner consistent with the reportable segments used by resource 
extraction issuers for purposes of financial reporting provides 
sufficient granularity when combined with the detailed geographic and 
project-level information required to be disclosed by the final rules. 
In addition, the proposed approach would have cost advantages by 
aligning the disclosure requirements with the issuer's existing 
financial reporting systems and procedures.
---------------------------------------------------------------------------

    \496\ See letter from PWYP-US 1 (recommending defining 
``business segment'' as the subsidiary or entity under the control 
of the issuer that makes payments to a government because that would 
aid accountability and facilitate local follow-up by data users). 
See also proposed Item 2.01(c)(1) of Form SD.
---------------------------------------------------------------------------

L. Treatment for Purposes of Securities Act and Exchange Act

1. Proposed Rules
    The statutory language of Section 13(q) does not specify that the 
information about resource extraction payments must be ``filed.'' 
Rather, it states that the information must be ``include[d] in an 
annual report[.]'' \497\ The proposed rules required resource 
extraction issuers to file, rather than furnish, the payment 
information on Form SD.
---------------------------------------------------------------------------

    \497\ 15 U.S.C. 78m(q)(2)(A).
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we solicited comment on whether the 
payment disclosure should be filed or furnished. We also asked whether 
certain officers, such as the resource extraction issuer's principal 
executive officer, principal financial officer, or principal accounting 
officer, should certify the Form SD filing's compliance with the 
requirements of Section 13(q) of the Exchange Act or that the filing 
fairly presents the information required to be disclosed under Rule 
13q-1.\498\
---------------------------------------------------------------------------

    \498\ We address responses to this request for comment and a 
similar one in Section II.G. above.
---------------------------------------------------------------------------

    Commenters were divided on whether the disclosure should be filed 
as proposed, thus incurring Section 18 liability, or whether it should 
be furnished.\499\ The commenters supporting the proposed approach 
stated that requiring the disclosure to be filed would ensure that it 
could be used reliably for investment analysis and for other 
purposes.\500\ The commenters that recommended allowing the disclosure 
to be furnished stated that the rules were not material to the ``vast 
majority of investors'' and that users of the data did not need the 
level of protection associated with Section 18 liability.\501\ These 
commenters expressed concern

[[Page 49398]]

about the costs issuers might incur from Section 18 liability.
---------------------------------------------------------------------------

    \499\ For those in favor of filing, see letters from Bean; PWYP-
US 1; TI-USA; and USSIF. For those in favor of furnishing, see 
letters from API 1; Chevron; Encana; and ExxonMobil 1.
    \500\ See, e.g., letter from PWYP-US 1.
    \501\ See, e.g., letter from API 1.
---------------------------------------------------------------------------

    One commenter recommended allowing foreign private issuers to 
furnish Form SD,\502\ while another commenter made a similar 
recommendation for foreign private issuers that are providing 
alternative reports.\503\ The latter commenter pointed to other 
instances where foreign private issuers have been permitted to furnish 
reports and noted that the antifraud provisions of the Exchange Act 
would still apply. This commenter also stated that the courts in home 
jurisdictions would be better suited to interpret the laws governing 
the alternate report.
---------------------------------------------------------------------------

    \502\ See letter from BP.
    \503\ See letter from RDS.
---------------------------------------------------------------------------

    Another commenter recommended that to the extent an issuer wishes 
to include additional, voluntary disclosures in its Form SD, it should 
be permitted to furnish rather than file that information.\504\ This 
commenter noted that many issuers avoid making elective disclosures in 
Commission filings due to liability concerns and that issuers could 
indicate what disclosure is being furnished under a separate heading or 
using other explanatory text.
---------------------------------------------------------------------------

    \504\ See letter from Ropes & Gray.
---------------------------------------------------------------------------

3. Final Rules
    The rules we are adopting today require the disclosure to be filed 
on Form SD. Section 13(q) does not state how the information should be 
submitted and instead leaves that question to the Commission to 
determine. We believe that the Form SD disclosure, including any 
voluntary disclosure, will benefit from potential Section 18 liability 
by providing issuers with further incentive to submit complete and 
accurate information. Although several commenters argued that the 
information is not material to investors and should therefore be 
furnished, we note that other commenters, including a number of large 
institutional investors who have expressed an intention to use the 
Section 13(q) disclosures, continue to argue that the information is 
material or important to investors.\505\ Given this disagreement, and 
that materiality is a fact specific inquiry, we are not persuaded that 
this is a reason to permit the information to be furnished. While we 
are mindful of the costs associated with Section 18 liability, as we 
noted in the Proposing Release, Section 18 does not create strict 
liability for filed information.\506\ Rather, it states that a person 
shall not be liable for misleading statements in a filed document if 
such person can establish that he or she acted in good faith and had no 
knowledge that the statement was false or misleading.\507\
---------------------------------------------------------------------------

    \505\ See letters from ACTIAM et al.; Bean; Calvert; 
International Transport Workers' Federation (Mar. 7, 2016) 
(``ITWF''); Oxfam 1; PWYP-US; Sen. Cardin et al.; Sen. Lugar et al.; 
TI-USA; and USSIF.
    \506\ See Proposing Release, Section II.G.6.
    \507\ Exchange Act Section 18(a) provides: ``Any person who 
shall make or cause to be made any statement in any application, 
report, or document filed pursuant to this title or any rule or 
regulation thereunder or any undertaking contained in a registration 
statement as provided in subsection (d) of section 15 of this title, 
which statement was at the time and in the light of the 
circumstances under which it was made false or misleading with 
respect to any material fact, shall be liable to any person (not 
knowing that such statement was false or misleading) who, in 
reliance upon such statement shall have purchased or sold a security 
at a price which was affected by such statement, for damages caused 
by such reliance, unless the person sued shall prove that he acted 
in good faith and had no knowledge that such statement was false or 
misleading. A person seeking to enforce such liability may sue at 
law or in equity in any court of competent jurisdiction. In any such 
suit the court may, in its discretion, require an undertaking for 
the payment of the costs of such suit, and assess reasonable costs, 
including reasonable attorneys' fees, against either party 
litigant.'' A plaintiff asserting a claim under Section 18 would 
need to meet the elements of the statute to establish a claim, 
including reliance and damages.
---------------------------------------------------------------------------

    Although a commenter stated that in certain other contexts issuers 
may furnish, rather than file, disclosure prepared in accordance with a 
foreign jurisdiction's requirements, we note that the disclosure 
furnished on Form 6-K, such as quarterly reports, is not required by 
the Commission's reporting requirements.\508\ Instead, such reports 
need only be furnished when they are made or required to be made public 
in such issuer's home jurisdiction. Foreign private issuers must file, 
and are not permitted to furnish, reports required by the Commission's 
rules, such as annual reports on Form 20-F and Form 40-F, and Form 6-K 
reports that have been specifically incorporated by reference into a 
Securities Act registration statement.
---------------------------------------------------------------------------

    \508\ See letter from RDS. A foreign private issuer is required 
to submit under cover of a Form 6-K (17 CFR 249.306) information 
that the issuer: Makes or is required to make public pursuant to the 
law of the jurisdiction of its domicile or in which it is 
incorporated or organized; files or is required to file with a stock 
exchange on which its securities are traded and which was made 
public by that exchange; or distributes or is required to distribute 
to its security holders. The Form 6-K report is deemed furnished, 
and not filed for purposes of Section 18, unless it has been 
specifically incorporated by reference into a previously filed 
Securities Act or Exchange Act registration statement or Exchange 
Act report, which is itself subject to Section 18.
---------------------------------------------------------------------------

M. Compliance Date

1. Proposed Rules
    Section 13(q) provides that, with respect to each resource 
extraction issuer, the final rules issued under that section shall take 
effect on the date on which the resource extraction issuer is required 
to submit an annual report relating to the issuer's fiscal year that 
ends not earlier than one year after the date on which the Commission 
issues the final rules under Section 13(q).\509\ We proposed requiring 
resource extraction issuers to comply with Rule 13q-1 and Form SD for 
fiscal years ending no earlier than one year after the effective date 
of the adopted rules.\510\ We also proposed selecting a specific 
compliance date that corresponds to the end of the nearest calendar 
quarter following the effective date, such as March 31, June 30, 
September 30, or December 31.\511\
---------------------------------------------------------------------------

    \509\ 15 U.S.C. 78m(q)(2)(F).
    \510\ Adopted rules typically go into effect 60 days after they 
are published in the Federal Register.
    \511\ See 2012 Adopting Release at 2 [77 FR 56365].
---------------------------------------------------------------------------

2. Comments on the Proposed Rules
    In the Proposing Release we asked whether we should provide a 
compliance date linked to the end of the nearest commonly used 
quarterly period following the effective date or whether we should 
adopt a shorter or longer transition period. We also solicited comment 
on whether the rules should provide for a longer transition period for 
certain categories of resource extraction issuers, such as smaller 
reporting companies or emerging growth companies.
    Several commenters opposed a longer transition period for any 
category of issuer, including smaller reporting companies.\512\ These 
commenters stated that issuers are generally on notice of the impending 
requirements and that companies track the required payment types in the 
normal course of doing business. They also noted that compliance costs 
for smaller companies are likely to be significantly lower than for 
large issuers since they usually have fewer payments to disclose. The 
Department of Interior noted that the USEITI does not make distinctions 
between issuers.
---------------------------------------------------------------------------

    \512\ See letters from Department of Interior and PWYP-US 1. See 
also letters from ACEP; Global Witness 1; and Oxfam 1.
---------------------------------------------------------------------------

    Some commenters recommended delaying the effective date for all 
issuers.\513\ One of these commenters recommended an effective date 
beginning with a fiscal year ending no earlier than December 31, 
2017,\514\ while another deferred to industry comments.\515\ Other 
commenters

[[Page 49399]]

recommended delaying the effective date for specific categories of 
issuers.\516\
---------------------------------------------------------------------------

    \513\ See letters from Encana and Ropes & Gray.
    \514\ See letter from Encana.
    \515\ See letter from Ropes & Gray.
    \516\ See letters from Cleary and Ropes & Gray. We address these 
comments in Section II.G above.
---------------------------------------------------------------------------

3. Final Rules
    The final rules require a resource extraction issuer to comply with 
Rule 13q-1 and Form SD for fiscal years ending no earlier than two 
years after the effective date of the adopted rules. We believe that 
this phase-in period is appropriate to provide all issuers with 
sufficient time to establish the necessary systems and procedures to 
capture and track all the required payment information before the 
fiscal year covered by their first Form SD filing starts. It also 
should afford issuers an appropriate opportunity to make any other 
necessary arrangements (such as obtaining modifications to existing 
contracts or seeking exemptive relief where warranted) to comply with 
Section 13(q) and these rules. This compliance date should also provide 
issuers with more time to consider the experience of companies 
reporting under similar payment transparency regimes, such as the EU 
Directives and ESTMA, which should reduce compliance costs.
    As proposed, we are also selecting a specific compliance date that 
corresponds to the end of the nearest calendar quarter following the 
effective date. Thus, under the final rules, the initial Form SD filing 
for resource extraction issuers would cover the first fiscal year 
ending on or after September 30, 2018 and would not be due until 150 
days later. Since most issuers use a December 31 fiscal year end, the 
filing deadline would not be until May 30, 2019 for most issuers. Given 
the length of time between the adoption of these rules and the start of 
the first fiscal year that must be reported, we do not believe any 
additional accommodations are necessary for smaller reporting 
companies, emerging growth companies, or other categories of issuers. 
We note that not providing longer phase-in periods for specific 
categories of issuers is consistent with the EITI and, for public 
companies, with the EU Directives and ESTMA.

III. Economic Analysis

A. Introduction and Baseline

    We are adopting Rule 13q-1 and an amendment to Form SD to implement 
Section 13(q), which was added to the Exchange Act by Section 1504 of 
the Act. Section 13(q) directs the Commission to issue rules that 
require a resource extraction issuer to disclose in an annual report 
filed with the Commission certain information relating to payments made 
by the issuer (including a subsidiary of the issuer or an entity under 
the issuer's control) to a foreign government or the U.S. Federal 
Government for the purpose of the commercial development of oil, 
natural gas, or minerals.
    As discussed above, Congress intended that the rules issued 
pursuant to Section 13(q) would help advance the important U.S. foreign 
policy objectives of combatting global corruption and helping to 
promote accountability, thereby potentially improving governance in 
resource-rich countries around the world.\517\ The statute seeks to 
achieve this objective by mandating a new disclosure provision under 
the Exchange Act that requires resource extraction issuers to identify 
and report payments they make to governments relating to the commercial 
development of oil, natural gas, or minerals. While these objectives 
and benefits differ from the investor protection benefits that our 
rules typically strive to achieve, investors and other market 
participants, as well as civil society in countries that are resource-
rich, may benefit from any increased economic and political stability 
and improved investment climate that such transparency promotes.\518\ 
In addition, some commenters stated that the information disclosed 
pursuant to Section 13(q) would benefit investors by, among other 
things, helping them model project cash flows and assess political 
risk, acquisition costs, and management effectiveness.\519\
---------------------------------------------------------------------------

    \517\ See Section I.E of the Proposing Release.
    \518\ See also 156 Cong. Rec. S5873 (May 17, 2010) (Statement 
from Senator Cardin) (``Transparency helps create more stable 
governments, which in turn allows U.S. companies to operate more 
freely--and on a level playing field--in markets that are otherwise 
too risky or unstable.''); and 156 Cong. Rec. S3816 (May 17, 2010) 
(Statement of Senator Lugar) (``Transparency empowers citizens, 
investors, regulators, and other watchdogs and is a necessary 
ingredient of good governance for countries and companies alike. . . 
. Transparency also will benefit Americans at home. Improved 
governance of extractive industries will improve investment climates 
for our companies abroad, it will increase the reliability of 
commodity supplies upon which businesses and people in the United 
States rely, and it will promote greater energy security.'')
    \519\ See, e.g., letters from Calvert Investments (Mar. 1, 2011) 
(``Calvert 1 (pre-proposal)''); California Public Employees 
Retirement System (Feb. 28, 2011) (``CalPERS (pre-proposal)''); and 
George Soros (Feb. 21, 2012) (``Soros (pre-proposal)'').
---------------------------------------------------------------------------

    We are sensitive to the costs and benefits of the rules we adopt, 
and Exchange Act Section 23(a)(2) requires us, when adopting rules, to 
consider the impact that any new rule would have on competition. In 
addition, Section 3(f) of the Exchange Act directs us, when engaging in 
rulemaking that requires us to consider or determine whether an action 
is necessary or appropriate in the public interest, to consider, in 
addition to the protection of investors, whether the action will 
promote efficiency, competition, and capital formation.\520\ We have 
considered the costs and benefits that would result from the final 
rules, as well as the potential effects on efficiency, competition, and 
capital formation. Many of the potential economic effects of the final 
rules would stem from the statutory mandate, while others would stem 
from the discretion we are exercising in implementing the statutory 
mandate. The discussion below addresses the costs and benefits that 
might result from both the statute and our discretionary choices, as 
well as the comments we received about these matters.\521\ In addition, 
as discussed elsewhere in this release, we recognize that the final 
rules could impose a burden on competition, but we believe that any 
such burden that might result would be necessary and appropriate in 
furtherance of the purposes of Exchange Act Section 13(q).
---------------------------------------------------------------------------

    \520\ Some commenters incorrectly asserted that we are required 
by statute to minimize costs. See, e.g., letter from API 1 at 15. 
Although we do not agree with this assertion, in crafting the final 
rules, we have sought to minimize costs to the extent possible, and 
we have attempted to ensure that any costs we are imposing are 
either necessary or appropriate in light of the foreign policy 
interests underlying Section 13(q).
    \521\ As discussed above, our discretionary choices are informed 
by the statutory mandate, and thus, discussion of the benefits and 
costs of those choices will necessarily involve the benefits and 
costs of the underlying statute.
---------------------------------------------------------------------------

    As part of our analysis, we have quantified the potential economic 
effects of the final rules wherever possible. Given both the nature of 
the statute's intended benefits and the lack of data regarding the 
benefits and the costs, in some cases we have been unable to provide a 
quantified estimate. Nevertheless, as described more fully below, we 
provide both a qualitative assessment of the potential effects and a 
quantified estimate of the potential aggregate initial and aggregate 
ongoing compliance costs. We reach our estimates by carefully 
considering comments we received on potential costs and taking into 
account additional data and information, including recent global 
developments in connection with resource extraction payment 
transparency. We rely particularly on those comment letters that 
provided quantified estimates and were transparent about their 
methodologies. As discussed in more detail below, after considering the 
comment letters, we

[[Page 49400]]

determined that it was appropriate to modify and/or expand upon some of 
the submitted estimates and methodologies to reflect data and 
information submitted by other commenters, as well as our own judgment 
and experience.
    The baseline the Commission uses to analyze the potential effects 
of the final rules is the current set of legal requirements and market 
practices.\522\ To the extent not already encompassed by existing 
regulations and current market practices, the final rules likely will 
have a substantial impact on the disclosure practices of, and costs 
faced by, resource extraction issuers. The overall magnitude of the 
potential costs of the final disclosure requirements will depend on the 
number of affected issuers and individual issuers' costs of compliance. 
We expect that the final rules will affect both U.S. issuers and 
foreign issuers that meet the definition of ``resource extraction 
issuer'' in substantially the same way, except for those issuers 
already subject to similar requirements adopted in the EEA member 
countries or Canada as discussed below in Section III.C.1. The 
discussion below describes the Commission's understanding of the 
markets that are affected by the final rules. We estimate the number of 
affected issuers in this section and quantify their costs in Section 
III.B.2 below.
---------------------------------------------------------------------------

    \522\ See Section I above for a discussion of the current legal 
requirements and significant international transparency regimes that 
affect market practices.
---------------------------------------------------------------------------

    To estimate the number of potentially affected issuers, we use data 
from Exchange Act annual reports for 2015, the latest full calendar 
year. We consider all Forms 10-K, 20-F, and 40-F filed in 2015 by 
issuers with oil, natural gas, and mining Standard Industrial 
Classification (``SIC'') codes \523\ and, thus, are most likely to be 
resource extraction issuers. We also considered filings by issuers that 
do not have the above mentioned oil, natural gas, and mining SIC codes 
and added them to the list of potentially affected issuers if we 
determined that they might be affected by the final rules.\524\ In 
addition, we have attempted to remove issuers that use oil, natural 
gas, and mining SIC codes but appear to be more accurately classified 
under other SIC codes based on the disclosed nature of their business. 
Finally, we have excluded royalty trusts from our analysis because we 
believe it is uncommon for such companies to make the types of payments 
that would be covered by the final rules. From these filings, we 
estimate that the number of potentially affected issuers is 755.\525\ 
We note that this number does not reflect the number of issuers that 
actually made resource extraction payments to governments in 2015, but 
rather represents the estimated number of issuers that might make such 
payments.
---------------------------------------------------------------------------

    \523\ Specifically, the oil, natural gas, and mining SIC codes 
considered are 1000, 1011, 1021, 1031, 1040, 1041, 1044, 1061, 1081, 
1090, 1094, 1099, 1220, 1221, 1222, 1231, 1311, 1321, 1381, 1382, 
1389, 1400, 2911, 3330, 3331, 3334, and 3339.
    \524\ These are issuers whose primary business is not 
necessarily resource extraction but which have some resource 
extraction operations, such as ownership of mines.
    \525\ In the Proposing Release, using calendar year 2014 data, 
we estimated that the number of affected issuers would be 877.
---------------------------------------------------------------------------

    In the following economic analysis, we discuss the potential 
benefits and costs and likely effects on efficiency, competition, and 
capital formation that might result from both the new reporting 
requirement mandated by Congress and from the specific implementation 
choices that we have made in formulating the final rules.\526\ We 
analyze these potential economic effects in Sections III.B and III.C 
and provide qualitative and, wherever possible, quantitative 
discussions of the potential costs and benefits that might result from 
the payment reporting requirement and specific implementation choices, 
respectively.
---------------------------------------------------------------------------

    \526\ Our consideration of potential benefits and costs and 
likely effects on efficiency, competition, and capital formation 
also is reflected throughout the discussion in Section II above.
---------------------------------------------------------------------------

B. Potential Effects Resulting From the Payment Reporting Requirement

1. Benefits
    As noted above, we understand that Section 13(q) and the rules 
required thereunder are intended to advance the important U.S. foreign 
policy objective of combatting global corruption and helping to promote 
accountability, thereby potentially improving governance in resource-
rich countries around the world.\527\ The statute seeks to realize 
these goals by improving transparency about the payments that companies 
in the extractive industries make to national and subnational 
governments, including local governmental entities.\528\ While these 
statutory goals and intended benefits are of global significance, the 
potential positive economic effects that may result cannot be readily 
quantified with any precision.\529\ The current empirical evidence on 
the direct causal effect of increased transparency in the resource 
extraction sector on societal outcomes is inconclusive,\530\ and 
several academic papers have noted the inherent difficulty in 
empirically validating a causal link between transparency interventions 
and governance improvements.\531\
---------------------------------------------------------------------------

    \527\ See Proposing Release, Section I.E.
    \528\ See id.
    \529\ Further, we note that the Commission is not statutorily 
required to quantify the benefits here. See Lindeen et al. v. SEC, 
2016 WL 3254610, *9 (Nos. 15-1149, 15-1150) (D.C. Cir. June 14, 
2016) (explaining that the Commission is not required to ``conduct a 
rigorous, quantitative economic analysis'' nor ``to measure the 
immeasurable'') (internal quotation marks omitted); see also id. 
(``find[ing] that the SEC's discussion of unquantifiable benefits 
fulfills its statutory obligation to consider and evaluate'' the 
potential economic effects of a Commission rule).
    \530\ For positive findings, see Caitlin C. Corrigan, ``Breaking 
the resource curse: Transparency in the natural resource sector and 
the extractive industries transparency initiative'', Resources 
Policy, 40 (2014), 17-30 (finding that the negative effect of 
resource abundance on GDP per capita, the capacity of the government 
to formulate and implement sound policies and the level of rule of 
law is mitigated in EITI countries but noting that the EITI has 
little effect on the level of democracy, political stability and 
corruption (the author also submitted a comment letter attaching an 
updated version of the study; see letter from Caitlin C. Corrigan 
(Feb. 16, 2016) (``Corrigan''))); Liz David-Barrett and Ken Okamura, 
``The Transparency Paradox: Why Do Corrupt Countries Join EITI?'', 
Working Paper No. 38, European Research Centre for Anti-Corruption 
and State-Building (Nov. 2013) (finding that EITI compliant 
countries gain access to increased aid the further they progress 
through the EITI implementation process and that EITI achieves 
results in terms of reducing corruption), available at https://eiti.org/document/transparency-paradox-why-do-corrupt-countries-join-eiti, and Maya Schmaljohann, ``Enhancing Foreign Direct 
Investment via Transparency? Evaluating the Effects of the EITI on 
FDI'', University of Heidelberg Discussion Paper Series No. 538 
(Jan. 2013) (finding that joining the EITI increases the ratio of 
the net foreign direct investment (``FDI'') inflow to GDP by 2 
percentage points). For negative empirical evidence, see [Ouml]lcer, 
Dilan (2009): Extracting the Maximum from the EITI (Development 
Centre Working Papers No. 276): Organisation for Economic 
Cooperation and Development (finding that the EITI has not been able 
to significantly lower corruption levels). However, all these papers 
discuss the earlier version of the EITI, which did not require 
project-level disclosure and rely on data generated prior to the 
implementation of the 2013 EITI Standard.
    \531\ See Andr[eacute]s Mej[iacute]a Acosta, ``The Impact and 
Effectiveness of Accountability and Transparency Initiatives: The 
Governance of Natural Resources'', Development Policy Review, 31-S1 
(2013), s89-s105; and Alexandra Gillies and Antoine Heuty, ``Does 
Transparency Work? The Challenges of Measurement and Effectiveness 
in Resource-Rich Countries'', Yale Journal of International Affairs, 
Spring/Summer 2011, 25-42.
---------------------------------------------------------------------------

    We received several comments on quantifying the potential economic 
benefits of the final rules that are discussed in detail below.\532\ 
Although these comments presented studies that attempt to quantify 
those benefits, as discussed below, they each have certain

[[Page 49401]]

limitations that we believe prevent us from relying on them to quantify 
the final rules' potential benefits in improving accountability and 
governance in resource-rich countries around the world. Furthermore, no 
other commenters included reliable data that would allow us to quantify 
the potential economic benefits of the final rules or suggested a 
source of data or a methodology that we could readily look to in doing 
so.
---------------------------------------------------------------------------

    \532\ See letter from Profs. Anthony Cannizzaro & Robert Weiner 
(Feb. 11, 2016) (``Cannizzaro & Weiner''). See also letters from API 
1 (Appendix B) and Publish What You Pay--US (third of three letters 
on Mar. 8, 2016) (``PWYP-US 4'') (both referring to a study by P. 
Healy and G. Serafeim). These letters and studies primarily focus on 
benefits to issuers and investors.
---------------------------------------------------------------------------

    It is also important to note, however, that Congress has directed 
us to promulgate this disclosure rule. Thus, we believe it reasonable 
to rely on Congress's determination that the rule will produce the 
foreign policy and other benefits that Congress sought in imposing this 
mandate. Because of the important foreign policy interests at stake, we 
believe that Congress' determination that the potential benefits of 
disclosure justify such a rule is a decision that is owed considerable 
deference, and we do not believe that Congress intended that we second-
guess its determination.
    Moreover, as noted above, we concur with Congress' judgment that 
resource extraction payment disclosures could help to achieve a 
critical foreign policy objective of the U.S. Government. In reaching 
this conclusion, we are particularly mindful that a broad international 
consensus has developed on the potential benefits of revenue 
transparency.\533\ Not only have the Canadian government \534\ and the 
European Union \535\ acknowledged the potential benefits by adopting 
disclosure requirements similar to what we are adopting, but even 
members of industry through their participation as stakeholders in EITI 
have acknowledged the benefits that revenue transparency can 
produce.\536\ Perhaps most significantly, industry stakeholders in the 
EITI process (which notably includes a number of industry 
organizations) \537\ have expressly adopted the position that the EITI 
disclosures (which now include identification of the issuers 
responsible for the payments and project-level reporting) produce 
``[b]enefits for implementing countries'' by ``strengthening 
accountability and good governance, as well as promoting greater 
economic and political stability.'' \538\ Industry stakeholders in EITI 
have similarly accepted the view that ``[b]enefits to civil society 
come from increasing the amount of information in the public domain 
about those revenues that governments manage on behalf of citizens, 
thereby making governments more accountable.'' \539\
---------------------------------------------------------------------------

    \533\ We also credit the views of the State Department and USAID 
that the disclosures we are requiring will help reduce corruption 
and promote accountability in resource-rich countries. Both agencies 
have a high degree of expertise and experience in these matters. 
Relatedly, we note that USAID has advanced a persuasive explanation 
for ways that the disclosures may help complement the agency's own 
efforts to combat corruption and enhance governance globally. See 
letter from USAID.
    \534\ See, e.g., ESTMA, Section 6 (``The purpose of this Act is 
to implement Canada's international commitments to participate in 
the fight against corruption through the implementation of measures 
applicable to the extractive sector, including measures that enhance 
transparency and measures that impose reporting obligations with 
respect to payments made by entities.''). See also ESTMA Guidance, 
at 2 (``Canadians will benefit from increased efforts to strengthen 
transparency in the extractive sector, both at home and abroad. 
Alongside Canada, the United States and European Union countries 
have put in place similar public disclosure requirements for their 
respective extractive industries. Together these reporting systems 
will contribute to raising global transparency standards in the 
extractive sector.'').
    \535\ See, e.g., European Commission Memo, ``New disclosure 
requirements for the extractive industry and loggers of primary 
forests in the Accounting (and Transparency) Directives (Country by 
Country Reporting)--frequently asked questions'' (June 12, 2013) 
(``The new disclosure requirement will improve the transparency of 
payments made to governments all over the world by the extractive 
and logging industries. Such disclosure will provide civil society 
in resource-rich countries with the information needed to hold 
governments to account for any income made through the exploitation 
of natural resources, and also to promote the adoption of the 
Extractive Industries Transparency Initiative (EITI) in these same 
countries. . . . The reporting of payments to government by the 
extractive and logging industries will provide civil society with 
significantly more information on what specifically is paid by EU 
companies to host governments in exchange for the right to extract 
the relevant countries' natural resources. By requiring disclosure 
of payments at a project level, where those payments had been 
attributed to a specific project and were material, local 
communities will have insight into what governments were being paid 
by EU multinationals for exploiting local oil/gas fields, mineral 
deposits and forests. This will also allow these communities to 
better demand that government accounts for how the money had been 
spent locally. Civil society will be in a position to question 
whether the contracts entered into between the government and 
extractive and logging companies had delivered adequate value to 
society and government.'').
    \536\ For example, in describing its involvement with EITI, 
ExxonMobil states that these ``efforts to promote revenue 
transparency have helped fight corruption, improve government 
accountability and promote greater economic stability around the 
world.'' See http://corporate.exxonmobil.com/en/current-issues/accountability/transparency/overview. Similarly, when discussing its 
role in EITI, Chevron has acknowledged that revenue transparency is 
``an important pathway to improved governance.'' See http://www.chevron.com/Stories/Progress-Partnerships-and-Transparency. 
Royal Dutch Shell has also expressed the position that ``[r]evenue 
transparency provides citizens with an important tool to hold their 
government representatives accountable and to advance good 
governance.'' See http://www.shell.com/sustainability/transparency/revenues-for-governments.html.
    \537\ See Stakeholders, available at https://eiti.org/supporters/partnerorganizations (last visited June 16, 2016).
    \538\ https://eiti.org/eiti/benefits.
    \539\ Id.
---------------------------------------------------------------------------

    Notably, none of the industry commenters expressed the view that 
the disclosures required by Section 13(q) would fail to help produce 
these anti-corruption and accountability benefits. Indeed, several 
commenters expressly acknowledged that transparency produces such 
benefits (notwithstanding the inability to reliably quantify those 
benefits). For example, one industry commenter stated that 
``[t]ransparency by governments and companies alike regarding revenue 
flows from the extraction of natural resources in a manner which is 
meaningful, practical and easily understood by stakeholders reduces the 
opportunity for corruption.'' \540\ Another industry commenter 
expressed its view ``that the disclosure of revenues received by 
governments and payments made by the extractive-industry companies to 
governments could lead to improved governance in resource-rich 
countries.'' \541\ Yet another industry commenter stated that resource-
revenue transparency efforts ``are fundamental building blocks of good 
resource governance and are key to fostering better decision-making 
over public revenues.'' \542\
---------------------------------------------------------------------------

    \540\ See letter from BHP.
    \541\ See letter from Chevron.
    \542\ See letter from Eni SpA (Jan. 31, 2016) (``Eni'').
---------------------------------------------------------------------------

    While there is no conclusive empirical evidence that would confirm 
whether the project-level, public disclosure that we are adopting will 
in fact reduce corruption, in forming our conclusion that payment 
transparency will further the identified U.S. foreign policy goals, we 
find persuasive the arguments and evidence advanced by several 
commenters throughout this rulemaking that have emphasized the 
potential benefits to civil society of such public disclosure.\543\ We 
note that many of these commenters provided reasons why the benefits to 
civil society of contract-based, project-level reporting would help to 
reduce corruption and promote accountability more effectively than more 
aggregated reporting, such as country-level reporting.\544\
---------------------------------------------------------------------------

    \543\ See, e.g., letters from Global Witness 1, The ONE Campaign 
(Mar. 16, 2016) (``ONE Campaign''), Oxfam, PWYP-US 3, TI-USA, and 
USAID.
    \544\ See letter from Oxfam, PWYP-US 1, TI-USA.
---------------------------------------------------------------------------

    To support their claims, these commenters provided numerous 
examples of ways in which disaggregated payment information can be 
effective in helping to reduce corruption and promote accountability, 
and no commenters disputed these

[[Page 49402]]

examples.\545\ For example, these commenters stated that public 
availability of project-level data would enable civil society groups, 
citizens, and local communities to know how much their governments earn 
from the resources that are removed from their respective territories 
when the governments deny them such information. In addition, according 
to some commenters, the disclosure of project-level data will help 
citizens to monitor public expenditures for efficiency and 
effectiveness, allow citizens and governments to ensure that revenues 
are being redistributed by the central government to localities 
properly (according to benefit-sharing agreements), and provide a basis 
for communities to advocate with the government for public 
services.\546\ One commenter suggested that project-level disclosure 
will empower citizens and civil society organizations to ensure that 
extractive revenues are used to generate public benefits for all and 
not just to enrich the elite, assist citizens to assess the development 
impact of extraction locally, and promote economic and social 
development, especially in communities that host natural resource 
extraction operations.\547\ These commenters also stated that this 
information would help empower civil society organizations to advocate 
for a fairer share of revenues, double-check government-published 
budget data, and better calibrate their expectations from the 
extractive issuers. Commenters on the 2010 Proposing Release provided 
similar arguments.\548\
---------------------------------------------------------------------------

    \545\ See Section I of the Proposing Release.
    \546\ See letter from ACEP, Publish What You Pay--US (Apr. 15, 
2014) (``PWYP 7 (pre-proposal)''), and TI-USA.
    \547\ See letter from PWYP 7 (pre-proposal).
    \548\ See, e.g., letters from Global Witness (Feb. 25, 2011) 
(``Global Witness 1 (pre-proposal)''); National Advocacy Coalition 
on Extractives (Feb. 10, 2015) (``NACE (pre-proposal)''); Oxfam 
America (Feb. 21, 2011) (``Oxfam 1 (pre-proposal)''); Publish What 
You Pay U.S. (Feb. 25, 2011) (``PWYP 1 (pre-proposal)''); Publish 
What You Pay Cameroon (June 8, 2015)(``PWYP-CAM (pre-proposal)''); 
Publish What You Pay--Indonesia (Mar. 11, 2015)(``PWYP-IND (pre-
proposal)''); Publish What You Pay--Zimbabwe (Feb. 20, 2015) 
(``PWYP-ZIM (pre-proposal)''); Revenue Watch Institute (Feb. 17, 
2011) (``RWI 1 (pre-proposal)''); and Syena Capital Management LLC 
(Feb. 17, 2011) (``Syena (pre-proposal)'').
---------------------------------------------------------------------------

a. Currently Available Empirical Analyses on Potential Social Gains 
From Transparency
    As a threshold matter, we think it is important to observe that the 
EITI and other global transparency efforts are relatively new, which 
makes it difficult at this time to draw any firm empirical conclusions 
about the potential long-term benefits that such transparency regimes 
may produce for resource-rich countries. The causal mechanisms involved 
are complex (impacted by myriad factors) and it may take several 
decades before those mechanisms yield empirically verifiable social 
gains.\549\
---------------------------------------------------------------------------

    \549\ See, e.g., studies cited in the note 531 above.
---------------------------------------------------------------------------

    A few commenters on the Proposing Release argued that the rules 
implementing Section 13(q) would generate societal benefits and cited 
studies that attempt to measure those benefits for countries that join 
the EITI.\550\ While these studies provide useful insight into the 
potential benefits to be derived from resource payment transparency 
regimes, as discussed more fully below, we believe that there are 
limitations associated with each of these studies that make it 
difficult for us to draw firm conclusions based on their findings.
---------------------------------------------------------------------------

    \550\ See letters from PWYP-US 1 and Corrigan.
---------------------------------------------------------------------------

    One commenter presented a study that found a significant increase 
in GDP when a resource-rich country joins the EITI.\551\ The study also 
found that the increase in GDP appears to be larger the more dependent 
a country's economy is on natural resource sectors. While the study is 
informative, we have not relied on it to form any quantitative 
conclusions. The study does not take into account other factors that 
could be driving the increase in GDP and that could be correlated with 
a country's participation in the EITI. While the study controls for 
time-invariant (or country-specific) factors in the empirical model, it 
does not control for time-varying factors that could be driving the 
results, such as the change in the quality of the institutions in a 
country. It is possible that non-EITI driven institutional improvements 
over the period of time used in the study contributed to the increase 
in GDP. It is also possible that the improvement in institutions had an 
impact on the country's decision to join the EITI.
---------------------------------------------------------------------------

    \551\ See letter from Corrigan (citing her earlier study: 
Corrigan, C. C. (2014). Breaking the Resource Curse: Transparency in 
the Natural Resource Sector and the Extractive Industries 
Transparency Initiative. Resources Policy, 41(1), 17-30).
---------------------------------------------------------------------------

    Another commenter cited two studies that examined the effect of a 
country joining the EITI on net foreign direct investment 
(``FDI'').\552\ One of the studies found that joining the EITI 
increased net FDI inflow by 50 percent, although the statistical 
significance of the results is marginal.\553\ The other study also 
found that joining the EITI increased the net FDI as a fraction of GDP 
by two percent.\554\ This second study, however, did not fully control 
for other factors that could jointly drive the increase in net FDI and 
affect the country's decision to join EITI, such as improvements in the 
quality of the country's institutions and overall improvement in the 
country's transparency. Thus, both of these studies have limitations 
that lessen our confidence in their results and hence our willingness 
to rely on them to quantify benefits from resource extraction payment 
transparency.
---------------------------------------------------------------------------

    \552\ See letter from PWYP-US 1 (citing Fernando Londo[ntilde]o, 
``Does Joining the Extractive Industries Transparency Initiative 
Have an Impact on Extractive and Non-Extractive FDI Inflows?'' 
(2014), available at http://gppreview.com/wp-content/uploads/2014/02/Londono-F.pdf) (``Londo[ntilde]o Study'') and Maya Schmaljohann, 
``Enhancing Foreign Direct Investment via Transparency? Evaluating 
the Effects of the EITI on FDI'' (Jan. 2013), available at http://archiv.ub.uni-heidelberg.de/volltextserver/14368/1/Schmaljohann_2013_dp538.pdf (``Schmaljohann Study'')).
    \553\ See Londo[ntilde]o Study.
    \554\ See Schmaljohann Study.
---------------------------------------------------------------------------

    Another commenter presented two single country-based case studies 
of conflict and unrest, which the commenter attributed to corruption 
and lack of transparency. The studies measured the economic impact of 
such conflict and unrest on U.S. oil companies and used the avoidance 
of such economic costs as a means of quantifying the societal benefits 
of transparency.\555\ In the first case study, the costs are estimated 
as the difference in revenues in years with conflict and unrest and a 
base year without such conflicts and unrest. The combined cost 
estimates from that study are approximately $17.4 billion over the 
period 2011-2014. In the second case study, the costs are estimated as 
unrealized revenues due to shut-in production events that are caused by 
conflict and unrest. The combined cost estimates from that study are 
approximately $14.7 billion over the period 2003-2016. In these case 
studies, however, it is difficult to distinguish the role that 
corruption and the lack of transparency played in stirring a country's 
conflict and unrest from the role that other factors such as ethnic 
conflicts, religious conflicts, and political repression may have 
played.
---------------------------------------------------------------------------

    \555\ See letter from ONE Campaign.
---------------------------------------------------------------------------

    One commenter cited its own study suggesting that high levels of 
corruption (measured by bribery) correspond to lower levels of economic 
development.\556\ The study found that higher levels of bribery were 
associated with higher maternal mortality, lower youth literacy rate, 
and lower access to basic sanitation. The same commenter cited another 
study that suggested that

[[Page 49403]]

even small improvements in a country's governance resulted in higher 
income and lower infant mortality rates in the long run.\557\ These 
findings seem broadly consistent with findings from other studies on 
the relationship between corruption and economic development.\558\
---------------------------------------------------------------------------

    \556\ See letter from TI-USA.
    \557\ See Daniel Kaufmann, Governance Matters 2010: Worldwide 
Governance Indicators Highlight Governance Successes, Reversals and 
Failures, available at http://www.brookings.edu/research/opinions/2010/09/24-wgi-kaufmann.
    \558\ See Section I.E of the Proposing Release.
---------------------------------------------------------------------------

b. Potential Benefits to Issuers and Investors From Transparency
    To the extent that the final rules increase transparency and thus 
reduce corruption, they would increase efficiency and capital 
formation. While the objectives of Section 13(q) may not appear to be 
ones that would necessarily generate measurable, direct economic 
benefits to investors or issuers, investors and issuers might benefit 
from the final rules' indirect effects. In the following paragraphs, we 
discuss existing theoretical arguments and empirical evidence that 
reduced corruption and better governance could have longer term 
positive impacts on economic growth and investment in certain countries 
where the affected issuers operate, which could in turn benefit issuers 
and their shareholders.
    Although the research and data available at this time does not 
allow us to draw any firm conclusions, we have considered several 
theoretical causal explanations for why reductions in corruption may 
increase economic growth and political stability, which in turn may 
reduce investor risk.\559\ High levels of corruption could introduce 
inefficiencies in market prices as a result of increased political 
risks and the potential awarding of projects to companies for reasons 
other than the merit of their bids. This, in turn, could prop up 
inefficient companies and limit investment opportunities for others. 
These potential distortions could have a negative impact on the 
economies of countries with high corruption, particularly to the extent 
that potential revenue streams are diminished or diverted. 
Additionally, the cost of corrupt expenditures, direct or indirect, 
impacts profitability, and, if the cost is sufficiently high, some 
potentially economically efficient or productive investments may not be 
made. Thus, reducing corruption could increase the number of productive 
investments and the level of profitability of each investment and could 
lead to improved efficiency in the allocation of talent, technology, 
and capital. Insofar as these effects are realized, each of them could 
benefit issuers operating in countries with reduced corruption levels. 
These and other considerations form a basis for several dynamic general 
equilibrium models predicting a negative relationship between 
corruption and economic development.\560\
---------------------------------------------------------------------------

    \559\ See, e.g., reviews by P. Bardhan, ``Corruption and 
Development: A Review of Issues,'' Journal of Economic Literature, 
35, no. 3, 1320-1346 (1997) and J. Svensson, ``Eight Questions about 
Corruption,'' Journal of Economic Perspectives, 19, no. 3, 19-42 
(2005).
    \560\ See, e.g., I. Ehrlich and F. Lui ``Bureaucratic Corruption 
and Endogenous Economic Growth,'' Journal of Political Economy, 107 
(6), 270-293 (1999); K. Blackburn, N. Bose, and E.M. Haque, ``The 
Incidence and Persistence of Corruption in Economic Development,'' 
Journal of Economic Dynamics and Control 30, 2447-2467 (2006); and 
C. Leite and J. Weidmann, ``Does Mother Nature Corrupt? Natural 
Resources, Corruption, and Economic Growth,'' International Monetary 
Fund Working Paper No. 99/85 (July 1999).
---------------------------------------------------------------------------

    A number of empirical studies have also shown that reducing 
corruption might result in an increase in the level of GDP and a higher 
rate of economic growth through more private investments, better 
deployment of human capital, and political stability.\561\ Other 
studies find that corruption reduces economic growth both directly and 
indirectly, through lower investments.\562\ To the extent that 
increased transparency could lead to a reduction in corruption and, in 
turn, improved political stability and investment climate, some 
investors may consider such factors in their investment decisions, 
including when pricing resource extraction assets of affected issuers 
operating in these countries.\563\ We note that some commenters on the 
Proposing Release supported this view.\564\
---------------------------------------------------------------------------

    \561\ See, e.g., P. Mauro, ``The effects of corruption on 
growth, investment and government expenditure: A cross country 
analysis,'' in K.A. Elliot (ed.) Corruption and the Global Economy, 
Washington DC: Institute for International Economics, 83-107 (1997); 
H. Poirson, ``Economic Security, Private Investment, and Growth in 
Developing Countries,'' International Monetary Fund Working Paper 
No. 98/4 (Jan. 1998); Institute for Economics and Peace, Peace and 
Corruption Report (2015).
    \562\ See Pak Hung Mo, ``Corruption and Economic Growth,'' 
Journal of Comparative Economics 29, 66-79 (2001); K. Gyimah-
Brempong, ``Corruption, economic growth, and income inequality in 
Africa,'' Economics of Governance 3, 183-209 (2002); and Pierre-
Guillaume M[eacute]on and Khalid Sekkat, ``Does corruption grease or 
sand the wheels of growth?'' Public Choice 122, 69-97 (2005).
    \563\ Several studies present evidence that reduction in 
corruption increases foreign direct investments. See, e.g., S.-J. 
Wei, ``How Taxing is Corruption on International Investors?'' NBER 
Working Paper 6030 (1997) and G. Abed and H. Davoodi, ``Corruption, 
Structural Reforms, and Economic Performance in the Transition 
Economies,'' International Monetary Fund Working Paper No. 00/132 
(July 2000).
    \564\ See letter from ACTIAM et al., Calvert, and PWYP-US 1.
---------------------------------------------------------------------------

    There also could be positive externalities from increased investor 
confidence to the extent that improved economic growth and investment 
climate could benefit other issuers working in those countries. 
Although we believe the evidence is presently too inconclusive to allow 
us to predict the likelihood that such a result would occur, we note 
that there is some empirical evidence suggesting that lower levels of 
corruption might reduce the cost of capital and improve valuations for 
some issuers.\565\
---------------------------------------------------------------------------

    \565\ See D. Kaufmann and S. J. Wei ``Does `Grease Money' Speed 
Up the Wheels of Commerce?'' NBER Working Paper 7093 (1999) 
(finding, based on survey evidence, that firms that pay fewer bribes 
have lower, not higher, cost of capital); and C. Lee and D. Ng, 
``Corruption and International Valuation: Does Virtue Pay?'' Journal 
of Investing, 18, no. 4, 23-41 (2009) (finding that firms from more 
corrupt countries trade at significantly lower market multiples).
---------------------------------------------------------------------------

    One commenter asserted that the studies cited above discuss 
primarily a single form of corruption--bribery--that in the commenter's 
view is not subject to the disclosures required by Section 13(q) and 
hence the commenter contended that these studies do not support our 
view that the required disclosures might achieve economic benefits 
resulting from reduced corruption.\566\ We acknowledge that the 
specific studies that the commenter mentions do focus on bribery as a 
form of corruption. All the other studies that we cite, which are not 
specifically mentioned by the commenter, do discuss corruption in 
general and its effect on economic growth. In fact, some specifically 
discuss the type of corruption addressed by the final rules.\567\ 
Furthermore, to the extent that Section 13(q) is successful in reducing 
the corruption in the form of misuse of funds, it could also reduce 
quid-pro-quo corruption as well. For example, if the government and 
issuers are more strictly

[[Page 49404]]

monitored by citizens and society as a result of the final rules, they 
may become more reluctant to engage in quid-pro-quo corruption. It is 
also possible that some of the payments that are reportable under 
Section 13(q) are an implicit form of bribery: For example, government 
officials could agree, instead of a bribe, to receive another type of 
payment from an issuer that could be expropriated by these officials 
later, after the payment is made. If the disclosure under Section 13(q) 
is successful in decreasing the misuse of funds, this type of implicit 
quid-pro-quo corruption could be reduced as well.
---------------------------------------------------------------------------

    \566\ See letter from API 1. As we explained above, we believe 
that this commenter has an unduly narrow view of the anti-corruption 
objectives of Section 13(q) and, thus, we disagree with the claim 
that Section 13(q) is unconcerned with helping to reduce bribery. 
See Section II.E.3.
    \567\ See, e.g., the study by J. Svensson at note 559 above, 
which defines corruption as misuse of public office for private 
gain. That study cites examples of corruption that are similar to 
the types of corruption the final rules are trying to address. For 
example, the study discusses the diversion of funds allocated to 
school districts in Uganda and road building projects in Indonesia 
by government officials in these countries. In Uganda, according to 
the study, only 13 percent of the funds allocated to the school 
districts actually reached them; the bulk of the grants was captured 
by local government officials and politicians. As this evidence 
became known and the central government began to publish newspaper 
accounts of monthly transfers to districts, so that school staff and 
parents could monitor local officials, schools received an average 
of 80 percent of their annual entitlements.
---------------------------------------------------------------------------

    We also note that some commenters on the Proposing Release \568\ 
stated that the disclosures required by Section 13(q) could provide 
useful information to investors in making investment decisions. 
Although we do not believe this is the primary purpose of the required 
disclosures, we acknowledge the possibility that the disclosures could 
provide potentially useful information to certain investors. Some 
commenters, for example, stated that the new disclosures could help 
investors better assess the risks faced by resource extraction issuers 
operating in resource-rich countries.\569\
---------------------------------------------------------------------------

    \568\ See letters from Bean, Calvert, ITWF, Peck & Chayes, Sen. 
Cardin et al., Sen. Lugar et al., TI-USA, and USSIF.
    \569\ See letters from Calvert, Columbia Center on Sustainable 
Investment (Oct. 30, 2015) (``Columbia Center (pre-proposal)''), and 
ACTIAM et al. Some commenters on the 2010 Proposing Release had 
similar views. See, e.g., letters from EarthRights International 
(Sept. 20, 2011) (``ERI 2 (pre-proposal)''); Global Witness 1 (pre-
proposal); PGGM Investments (Mar. 1, 2011) (``PGGM (pre-
proposal)''); and Oxfam 1 (pre-proposal).
---------------------------------------------------------------------------

    One of these commenters identified several benefits that project-
level reporting would generate for investors.\570\ First, according to 
the commenter, such reporting would help investors assess the 
effectiveness of the diversification of risks within a portfolio by 
enabling them to understand better the risk profiles of individual 
projects within a given country and the contribution of each project to 
the overall returns and variation in returns of the portfolio of 
projects that an issuer has in that country. Another commenter 
expressed a similar view.\571\ We note, however, that additional 
information, beyond the disclosure required by Section 13(q), is needed 
to estimate returns and variation of returns of a project or portfolio 
of projects in a given country. For example, investors and analysts 
will need cash flow information (revenues and total costs, not only 
those paid to the local government) and cost of capital per project, 
which may not be readily available. Thus, the extent to which the 
disclosure required by Section 13(q) may generate this particular 
benefit is unclear.
---------------------------------------------------------------------------

    \570\ See letter from Columbia Center (pre-proposal).
    \571\ See letter from Robert F. Conrad, Ph.D. (July 17, 2015) 
(``Conrad (pre-proposal)'').
---------------------------------------------------------------------------

    A second benefit for investors, according to the commenter, is that 
project-level reporting would help adjust assumptions on a major cost 
to the project: the effective tax rate of the host government, the 
total taxes and other payments to governments. The commenter provided a 
hypothetical example in which information on the effective tax rate 
paid increases the estimate of the value of the company by three 
percent. While the benefit of having accurate tax information when 
valuing a project or a company is indisputable, it is unlikely, as we 
indicated above, that an investor or analyst will have accurate 
information for other components (e.g., revenues, total costs, and cost 
of capital) necessary to value a project. If those components must be 
estimated, as is typically the case, the detailed tax information may 
not have a first order effect on project/company value, or at least may 
not yield a substantial advantage over simply using the marginal tax 
rate of the host country.
    A third benefit for investors, according to the commenter, is that 
the project-level disclosure would help investors assess the issuer's 
exposure to commodity price downturns by analyzing industry cost curves 
to forecast commodity prices. As noted above, such benefit assumes that 
all other relevant costs (e.g., production costs and capital 
expenditures), besides the one reported under Section 13(q), are known 
to investors, which may not be the case.
    A fourth benefit for investors, according to the commenter, is that 
project-level disclosure would result in lower cost of capital because 
it makes firms more transparent and thus creates trust with investors. 
The commenter cites two studies that find a positive link between 
transparency and cost of capital. The studies, however, do not provide 
evidence that resource extraction transparency in particular leads to 
lower cost of capital; rather, the studies conclude more generally that 
earnings transparency and the strength of the country's securities 
regulations can have a major impact on cost of capital. Transparency 
regarding key company financial and accounting information will likely 
have a stronger effect on cost of capital than transparency regarding 
the company's resource payments.\572\
---------------------------------------------------------------------------

    \572\ Finance theory implies that a firm's cost of capital 
depends primarily on the covariance between its future free cash 
flows and the cash flows from other available investments in the 
market. See, e.g., R. Lambert, C. Leuz, and R. Verrecchia, 
``Accounting information, disclosure, and the cost of capital,'' 
Journal of Accounting Research, 45, 385-420 (2007). The relevant 
free cash flows apply to the entire firm, as reflected in its 
overall disclosures and top line financial measures. Because 
resource payments are already incorporated within a firm's reported 
cash flows, improved transparency about resource payments is 
unlikely to have a large impact on a firm's cost of capital.
---------------------------------------------------------------------------

    A fifth benefit for investors, according to the commenter, is that 
increased transparency may lead to lower political risk. Such a 
benefit, however, depends not only on resource extraction payment 
disclosure, but also on other types of disclosure and the quality of 
the governance of the host country. Disclosure under Section 13(q) by 
itself may not result in lower political risk.
    While we acknowledge all these comments, we believe that the direct 
incremental benefit to investors from this information may be limited 
given that most impacted issuers, other than smaller reporting 
companies,\573\ are already required to disclose their most significant 
operational and financial risks as well as certain financial 
information related to the geographic areas in which they operate in 
their Exchange Act annual reports.\574\
---------------------------------------------------------------------------

    \573\ About 43 percent of affected issuers are smaller reporting 
companies that are not obligated to disclose in their Exchange Act 
annual reports significant risk factors they face. For such 
companies, the resource extraction payments disclosure could provide 
incremental information that might benefit some investors, to the 
extent that they would not otherwise have a requirement to disclose 
the political or economic risks related to operating in resource-
rich countries. We do not, however, have data on whether such 
companies have material operations in politically volatile regions 
and whether they have exposure to risks described by commenters.
    \574\ See Item 1A and Item 10(d)(3) of Form 10-K and Item 3.D of 
Form 20-F. See also Item 1 of Form 10-K which requires disclosure of 
revenues from external customers attributed to any individual 
foreign country, if material, and long lived assets located in any 
individual foreign country, if material and Item B.2 of Form 20-F 
which requires disclosure of the principal markets in which the 
company competes, including a breakdown of total revenues by 
category of activity and geographic market for each of the last 
three financial years. In addition, pursuant to Item 7 of Form 10-K 
and Item 5D Form 20-F, registrants other than smaller reporting 
companies are required to provide a discussion of any known trends 
or uncertainties that the registrant reasonably expects will have a 
material favorable or unfavorable impact on net sales or revenues or 
income from continuing operations or the registrant's liquidity.
---------------------------------------------------------------------------

    In response to the Proposing Release, one commenter suggested an 
additional approach to quantify the rule's benefits to investors.\575\ 
A few other commenters

[[Page 49405]]

referenced another study using a similar methodology.\576\ Both of 
these studies use issuers' stock price reaction to various events 
associated with the rulemaking process to measure investors' view on 
the effect of the rule on the value of their investments.\577\ The 
studies posit that aggregating stock market gains or losses (adjusted 
for other factors) for resource extraction issuers around the relevant 
events enables the quantification of the aggregate monetary gains or 
losses that investors attribute to the rule. We note that even though 
these two studies use similar approaches (i.e., an event study) to 
quantify the potential benefits to investors, they arrive at somewhat 
different conclusions with respect to the rule's perceived 
benefits.\578\
---------------------------------------------------------------------------

    \575\ See letter from Cannizzaro and Weiner.
    \576\ See letters from API 1 (Appendix B) and PWYP-US 4 that 
both refer to the study by P. Healy and G. Serafeim, ``Voluntary, 
Self-Regulatory and Mandatory Disclosure of Oil and Gas Company 
Payments to Foreign Governments'', Working Paper (2015), available 
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1961404.
    \577\ Cannizzaro and Weiner consider four events: the adoption 
of the rule by the Commission on August 22, 2012, the API lawsuit 
filing on October 10, 2012, the vacation of the rule by the court on 
July 2, 2013, and the December 11, 2015, reproposal of the rule. 
Healy and Serafeim consider seven events: the House-Senate 
Conference Committee meeting on the Dodd-Frank Act on June 24, 2010, 
the passage of the Dodd-Frank Act on June 26, 2010, the signing of 
the Dodd-Frank Act on July 21, 2010, the adoption of the rule by the 
Commission on August 22, 2012, the API lawsuit filing on October 10, 
2012, the vacation of the rule by the court on July 2, 2013, and the 
API comment letter submission on November 7, 2013.
    \578\ The studies use different events, sample selection 
criteria, and measures of expected return. Healy and Serafeim found 
that investors negatively reacted to relevant events: they find that 
the average cumulative abnormal return for 26 stocks in their sample 
for the 3-day window around the days of studied events is -1.90% for 
events that increase probability that the rules would be implemented 
and +1.06% for events that decrease the probability that the rules 
would be implemented. Cannizzaro and Weiner generally found that 
investors positively reacted to relevant events. They find that the 
median cumulative abnormal returns for indexes or exchange traded 
funds that focus on extractive industries for the 3-day (7-day) 
window around the days of studied events are +0.28% (+0.26%) and 
+0.66% (+1.83%) for events that increase probability that the rules 
would be implemented and +0.35% (-0.31%) and -2.77% (-4.83%) for 
events that decrease the probability that the rules would be 
implemented.
---------------------------------------------------------------------------

    We carefully considered each of these studies, but note that there 
are a number of potential limitations in the analysis: certain of the 
events used in these studies may be confounded by other events; \579\ 
neither of the studies considers alternative measures of expected 
market return; \580\ and neither of the studies reports the statistical 
significance of their findings. Consequently, we are unable to rely on 
these studies to draw unambiguous conclusions about investors' 
attitudes towards the overall effect of the costs and benefits of the 
rule as expressed in their valuation of resource extraction issuers on 
certain event dates.
---------------------------------------------------------------------------

    \579\ For example, the Dodd-Frank Act is a multipart law, of 
which Section 13(q) is just one part. Therefore, it is not clear 
whether the reported results describe the market reaction to the 
entire Dodd-Frank Act or to Section 13(q) only.
    \580\ For example, the Healy and Serafeim study does not adjust 
expected stock return for the change in oil, natural gas, or other 
commodities prices, and the Cannizzaro and Weiner study does not 
consider alternative models of market return (e.g., the Fama-French 
three-factor model).
---------------------------------------------------------------------------

2. Costs
    We received a number of comments on the compliance costs that would 
be imposed by the proposed rules. We first summarize these comments in 
the subsection immediately below and then, in the following 
subsections, we assess these comments as part of our discussion of the 
final rules' potential direct and indirect compliance costs and their 
potential effects on competition.
a. Commenters' Views of Compliance Costs
    Many commenters stated that the reporting regime mandated by 
Section 13(q) would impose significant compliance costs on issuers. 
During the comment period after the 2010 Proposing Release, several 
commenters specifically addressed the cost estimates presented in the 
Paperwork Reduction Act (``PRA'') section of that release.\581\ Other 
commenters discussed the costs and burdens to issuers generally as well 
as costs that could have an effect on the PRA analysis.\582\ In the 
Proposing Release, in response to comments previously received, we 
revised our estimates of both initial and ongoing compliance costs. In 
addition, also in response to comments, we made several changes to our 
PRA estimates that were designed to better reflect the burdens 
associated with the new disclosure requirements. In response to the 
Proposing Release, a number of commenters submitted letters reiterating 
and emphasizing the potential of the proposed rules to impose 
substantial costs.\583\ Only one commenter suggested an alternative 
quantitative estimate of the direct compliance costs.\584\ We discuss 
this estimate below, after a brief discussion of the comments on the 
cost estimates that were provided on the 2010 Proposing Release.
---------------------------------------------------------------------------

    \581\ See the following pre-proposal letters from American 
Petroleum Institute (Jan. 28, 2011) (``API 1 (pre-proposal)''); 
American Petroleum Institute (Aug. 11, 2011) (``API 2 (pre-
proposal)''); Barrick Gold Corporation (Feb. 28, 2011) (``Barrick 
Gold (pre-proposal)''); ERI 2 (pre-proposal); Exxon Mobil (Jan. 31, 
2011) (``ExxonMobil 1 (pre-proposal)''); ExxonMobil (Oct. 25, 2011) 
(``ExxonMobil 3 (pre-proposal)''); National Mining Association (Mar. 
2, 2011) (``NMA 2 (pre-proposal)''); Rio Tinto plc (Mar. 2, 2011) 
(``Rio Tinto (pre-proposal)''); Royal Dutch Shell plc (Jan. 28, 
2011) (``RDS 2 (pre-proposal)''); and Royal Dutch Shell (Aug. 1, 
2011) (``RDS 4 (pre-proposal)'').
    \582\ See, e.g., letters from British Petroleum p.l.c. (Feb. 11, 
2011) (``BP 1 (pre-proposal)''); Chamber of Commerce Institute for 
21st Century Energy (Mar. 2, 2011) (``Chamber Energy Institute (pre-
proposal)''); Chevron Corporation (Jan. 28, 2011) (``Chevron (pre-
proposal)''); Cleary Gottlieb Steen & Hamilton (Mar. 2, 2011) 
(``Cleary (pre-proposal)''); Hermes Equity Ownership Services Ltd. 
(Mar. 2, 2011) (``Hermes (pre-proposal)''); and PWYP 1 (pre-
proposal).
    \583\ See, e.g., letters from API 1 and ExxonMobil 1.
    \584\ See letter from Claigan Environmental (Feb. 16, 2016) 
(``Claigan'').
---------------------------------------------------------------------------

    Some commenters on the 2010 Proposing Release disagreed with our 
industry-wide estimate of the total annual increase in the collection 
of information burden and argued that it underestimated the actual 
costs that would be associated with the rules.\585\ These and other 
commenters stated that, depending upon the final rules adopted, the 
compliance burdens and costs arising from implementation and ongoing 
compliance with the rules would be significantly higher than those 
estimated by the Commission.\586\ However, these commenters generally 
did not provide quantitative analysis to support their estimates.\587\
---------------------------------------------------------------------------

    \585\ See letters from API 1 (pre-proposal), ExxonMobil 1 (pre-
proposal).
    \586\ See letters from API 1 (pre-proposal); API 2 (pre-
proposal); American Petroleum Institute (Jan. 19, 2012) (``API 3 
(pre-proposal)''); Barrick Gold (pre-proposal); ExxonMobil 1 (pre-
proposal); NMA 2 (pre-proposal); Rio Tinto (pre-proposal); and RDS 2 
(pre-proposal).
    \587\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal). ExxonMobil 1 (pre-proposal) did provide estimated 
implementation costs of $50 million if the definition of ``project'' 
is narrow and the level of disaggregation is high across other 
reporting parameters. This estimate is used in our analysis below of 
the expected implementation costs.
---------------------------------------------------------------------------

    Commenters on the 2010 Proposing Release also stated that 
modifications to issuers' core enterprise resource planning systems and 
financial reporting systems would be necessary to capture and report 
payment data at the project level, for each type of payment, government 
payee, and currency of payment.\588\ These commenters estimated that 
the resulting initial implementation costs would be in the tens of 
millions of dollars for large issuers and millions of dollars for many 
small issuers.\589\ Two of these commenters provided examples of the

[[Page 49406]]

modifications that would be necessary, including establishing 
additional granularity to existing coding structures (e.g., splitting 
accounts that contain both government and non-government payment 
amounts), developing a mechanism to appropriately capture data by 
``project,'' building new collection tools within financial reporting 
systems, establishing a trading partner structure to identify and 
provide granularity around government entities, establishing 
transaction types to accommodate types of payment (e.g., royalties, 
taxes, or bonuses), and developing a systematic approach to handle 
``in-kind'' payments.\590\ These two commenters estimated that total 
industry costs for initial implementation of the final rules could 
amount to hundreds of millions of dollars.\591\
---------------------------------------------------------------------------

    \588\ See letters from API 1 (pre-proposal); ExxonMobil 1 (pre-
proposal); and RDS 2 (pre-proposal).
    \589\ See letters from API 1 (pre-proposal); ExxonMobil 1 (pre-
proposal); and RDS 2 (pre-proposal). These commenters did not 
describe how they defined small and large issuers.
    \590\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal).
    \591\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal).
---------------------------------------------------------------------------

    These commenters added that these estimated costs could be 
significantly greater depending on the scope of the final rules.\592\ 
They suggested, for example, that costs could increase depending on how 
the final rules define ``project'' and whether the final rules require 
reporting of non-consolidated entities, require ``net'' and accrual 
reporting, or require an audit.\593\ Another commenter estimated that 
the initial set up time and costs associated with the rules 
implementing Section 13(q) would require 500 hours for the issuer to 
change its internal books and records and $100,000 in information 
technology consulting, training, and travel costs.\594\ One commenter 
representing the mining industry estimated that start-up costs, 
including the burden of establishing new reporting and accounting 
systems, training local personnel on tracking and reporting, and 
developing guidance to ensure consistency across reporting units, would 
be at least 500 hours for a mid-to-large sized multinational 
issuer.\595\
---------------------------------------------------------------------------

    \592\ See letters from API 1 (pre-proposal); ExxonMobil 1 (pre-
proposal); and RDS 2 (pre-proposal).
    \593\ See letters from API 1 (pre-proposal); ExxonMobil 1 (pre-
proposal); and RDS 2 (pre-proposal). As previously discussed, the 
final rules do not require the payment information to be audited or 
reported on an accrual basis; therefore, commenters' concerns about 
possible costs associated with these items should be alleviated. See 
Section II.G.5 of the Proposing Release.
    \594\ See letter from Barrick Gold (pre-proposal).
    \595\ See letter from NMA 2 (pre-proposal).
---------------------------------------------------------------------------

    Two commenters stated that arriving at a reliable estimate for the 
ongoing annual costs of complying with the rules would be difficult 
because the rules were not yet fully defined but suggested that a 
``more realistic'' estimate than the estimate included in the 2010 
Proposing Release is hundreds of hours per year for each large issuer 
that has many foreign locations.\596\ Commenters also indicated that 
costs related to external professional services would be significantly 
higher than the Commission's estimate, resulting primarily from XBRL 
tagging and higher printing costs, although these commenters noted that 
it is not possible to estimate these costs until the specific 
requirements of the final rules are determined.\597\
---------------------------------------------------------------------------

    \596\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal) (each noting that estimates would increase if the 
final rules contain an audit requirement or if the final rules are 
such that issuers are not able to automate material parts of the 
collection and reporting process).
    \597\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal).
---------------------------------------------------------------------------

    One commenter on the 2010 Proposing Release estimated that ongoing 
compliance with the rules implementing Section 13(q) would require 100-
200 hours of work at the head office, an additional 100-200 hours of 
work providing support to its business units, and 40-80 hours of work 
each year by each of its 120 business units, resulting in an 
approximate yearly total of 4,800-9,600 hours and $2,000,000-
$4,000,000.\598\ One large multinational issuer estimated an additional 
500 hours each year, including time spent to review each payment to 
determine if it is covered by the reporting requirements and ensure it 
is coded to the appropriate ledger accounts.\599\ Another commenter 
representing the mining industry estimated that, for an issuer with a 
hundred projects or reporting units, the annual burden could be nearly 
10 times the estimated PRA burden set out in the 2010 Proposing 
Release.\600\ This commenter stated that its estimate takes into 
account the task of collecting, cross-checking, and analyzing extensive 
and detailed data from multiple jurisdictions around the world, as well 
as the potential for protracted time investments to comply with several 
aspects of the rules proposed in 2010 that are not included in the 
current final rules.\601\ This commenter also stated that the estimate 
in the 2010 Proposing Release did not adequately capture the burden to 
an international company with multiple operations where a wide range of 
personnel would need to be involved in capturing and reviewing the data 
for the required disclosures as well as for electronically tagging the 
information in XBRL format.\602\
---------------------------------------------------------------------------

    \598\ See letter from Rio Tinto (pre-proposal). These estimates 
exclude initial set-up time required to design and implement the 
reporting process and develop policies to ensure consistency among 
business units. They also assume that an audit is not required.
    \599\ See letter from Barrick Gold (pre-proposal).
    \600\ See letter from NMA 2 (pre-proposal).
    \601\ See id. Most of the time investments outlined by this 
commenter would not apply to the final rules, such as the cost of 
seeking information from non-consolidated ``controlled'' entities, 
obtaining compliance advice on the application of undefined terms 
such as ``project,'' and reviews of the disclosure in connection 
with periodic certifications under the Sarbanes Oxley Act. Certain 
potential costs outlined by the commenter, however, would apply to 
the final rules, such as those associated with implementing new 
systems based on our final definition of ``project'' and other 
definitions and costs associated with attempting to secure an 
exemption from the Commission when foreign law prohibitions on 
disclosure apply.
    \602\ See letter from NMA 2 (pre-proposal).
---------------------------------------------------------------------------

    In response to the Proposing Release, only one commenter suggested 
an alternative quantitative estimate of the direct compliance 
costs.\603\ The commenter's suggested approach is different from other 
approaches suggested by commenters and from the approach presented in 
the Proposing Release in that it considers aggregate industry costs 
directly rather than on a per issuer basis. Starting from an estimate 
of the total number of fields or mines in the world, the commenter 
first derived an estimate of the number of projects per field or mine 
that might be reportable under the final rules. The commenter then 
multiplied the number of reportable projects by the estimated cost for 
an issuer to report its activities for an individual field or mine to 
calculate total compliance costs to be incurred by all issuers. The 
quantitative estimates derived from this approach are within our range 
of estimates (see the numerical comparison in Section III.B.2.b. 
below). However, we note that some of the commenter's assumptions are 
not fully explained (e.g., the number of internal and external hours 
per issuer per field or mine that issuers would spend on compliance 
with the rules).
---------------------------------------------------------------------------

    \603\ See letter from Claigan.
---------------------------------------------------------------------------

    Although commenters on the Proposing Release did not address 
whether compliance costs have been overstated, commenters on the 2010 
Proposing Release expressed that view.\604\ One commenter stated that 
most issuers already have internal systems in place for recording 
payments that would be required to be disclosed under Section 13(q) and 
that many issuers currently are subject to reporting requirements at a 
project level.\605\

[[Page 49407]]

Another commenter anticipated that, while the rules would likely result 
in additional costs to resource extraction issuers, such costs would be 
marginal in scale because, in the commenter's experience, many issuers 
already have extensive systems in place to handle their current 
reporting requirements and any adjustments needed as a result of 
Section 13(q) could be done in a timely and cost-effective manner.\606\ 
Another commenter believed that issuers could adapt their current 
systems in a cost-effective manner because they should be able to adapt 
a practice undertaken in one operating environment to those in other 
countries without substantial changes to the existing systems and 
processes of an efficiently-run enterprise.\607\
---------------------------------------------------------------------------

    \604\ See letters from ERI 2 (pre-proposal); Oxfam 1 (pre-
proposal); PWYP 1 (pre-proposal); and RWI 1 (pre-proposal).
    \605\ See letter from RWI 1 (pre-proposal) (noting that 
Indonesia requires reporting at the production sharing agreement 
level and that companies operating on U.S. federal lands report 
royalties paid by lease).
    \606\ See letter from Hermes (pre-proposal).
    \607\ See letter from RWI 1 (pre-proposal).
---------------------------------------------------------------------------

    Another commenter stated that, in addition to issuers already 
collecting the majority of information required to be made public under 
Section 13(q) for internal record-keeping and audits, U.S. issuers 
already report such information to tax authorities at the lease and 
license level.\608\ This commenter added that efficiently-run issuers 
should not have to make extensive changes to their existing systems and 
processes to export practices undertaken in one operating environment 
to another.\609\ However, another commenter disagreed that issuers 
already report the payment information required by Section 13(q) for 
tax purposes.\610\ This commenter also noted that tax reporting and 
payment periods may differ.
---------------------------------------------------------------------------

    \608\ See letter from PWYP 1 (pre-proposal).
    \609\ See id. (citing statement made by Calvert Investments at a 
June 2010 IASB-sponsored roundtable).
    \610\ See letter from Rio Tinto (pre-proposal) (``[t]his is a 
simplistic view, and the problem is that tax payments for a specific 
year are not necessarily based on the actual accounting results for 
that year.'').
---------------------------------------------------------------------------

    One commenter, while not providing competing estimates, questioned 
the accuracy of the assertions relating to costs from industry 
participants,\611\ noting that: (i) Some issuers already report 
project-level payments in certain countries in one form or another and 
under a variety of regimes; (ii) some EITI countries are already moving 
toward project-level disclosure; and (iii) it is unclear whether 
issuers can save much time or money by reporting government payments at 
the material project or country level.\612\
---------------------------------------------------------------------------

    \611\ See letter from ERI 2 (pre-proposal).
    \612\ This commenter also explained that any costs would be 
limited because, among other things, issuers are already required to 
keep records of their subsidiaries' payments to governments under 
the Foreign Corrupt Practices Act. Id.
---------------------------------------------------------------------------

b. Quantitative Estimates of Compliance Costs
    In the Proposing Release, we presented a quantitative estimate of 
the compliance costs associated with the proposed rules. No commenters 
specifically addressed this quantitative estimate or provided 
additional data that we could use to update or refine this estimate. 
Because we have not received quantitative estimates using the same or 
similar approaches that take into account the differences between the 
rules proposed in 2010 and those proposed in the Proposing Release, we 
use the approach presented in the Proposing Release and the 
quantitative information supplied by commenters in response to the 2010 
Proposing Release to assess the initial and ongoing compliance costs of 
the final rules.\613\ We supplement and compare this analysis with the 
cost estimate supplied by one commenter that used a different 
approach.\614\ Our general approach is to estimate the upper and lower 
bounds of the compliance costs for each potentially affected issuer and 
then to sum up these estimates to estimate the aggregate compliance 
costs.\615\ As discussed in Section III.A above, we estimate that, as 
of the end of 2015, 755 issuers would be potentially affected by the 
final rules.\616\ However, in determining which issuers are likely to 
bear the full costs of compliance with the final rules, we make two 
adjustments to the list of affected issuers. First, we exclude those 
issuers that will be subject to disclosure requirements in foreign 
jurisdictions that are substantially similar to the final rules and 
therefore will likely already be bearing compliance costs for such 
disclosure. Second, we exclude small issuers that likely could not have 
made any payment above the de minimis amount of $100,000 to any 
government entity in 2015.
---------------------------------------------------------------------------

    \613\ See letters from Barrick Gold (pre-proposal), ExxonMobil 1 
(pre-proposal), and Rio Tinto (pre-proposal) discussed above in 
Section III.B.2.a. One commenter also provided estimates of initial 
compliance hours that are similar to Barrick Gold. See letter from 
NMA 2 (pre-proposal). We are unaware of reliable data that would 
allow us to estimate the impact of changed provisions, (e.g., the 
change in the definition of the term ``control'').
    \614\ See letter from Claigan discussed above. This commenter's 
cost estimates are largely consistent with our estimates.
    \615\ There may be some uncertainty surrounding who will 
ultimately bear the compliance costs. Depending on market conditions 
and the degree of competition, issuers may attempt to pass some or 
all of their costs on to other market participants. This 
consideration, however, does not change our estimates.
    \616\ We acknowledge that, as one commenter suggested, some of 
these issuers are affiliated and thus are likely to share compliance 
systems and fixed costs of creating such systems. See letter from 
Publish What You Pay United States (Nov. 12, 2015) (``PWYP-US 2 
(pre-proposal)''). Due to difficulties in determining affiliation 
status, however, we have not attempted to eliminate these issuers 
from our estimates, and therefore our estimates may overstate the 
potential costs. Nevertheless, this potential overstatement of costs 
would not apply in one of the cases we consider below, the case of 
no fixed costs, because the costs would depend only on the total 
assets of affected issuers, not on the number of them.
---------------------------------------------------------------------------

    To address the first consideration, we searched the filed annual 
forms and forms' metadata for issuers that have a business address, are 
incorporated, or are listed on markets in the EEA or Canada. For 
purposes of our analysis, we assume that those issuers will already be 
subject to similar resource extraction payment disclosure rules in 
those jurisdictions by the time the final rules become effective and, 
thus, that the additional costs to comply with the final rules will be 
much lower than costs for other issuers.\617\ We identified 192 such 
issuers.\618\
---------------------------------------------------------------------------

    \617\ We assume that an issuer will be subject to the EEA or 
Canadian rules if it is listed on a stock exchange located in one of 
these jurisdictions or if it has a business address or is 
incorporated in the EEA or Canada and its total assets are greater 
than $50 million. The latter criteria is a proxy for multipronged 
eligibility criteria underlying both EEA and Canadian rules that 
include issuer assets, revenues, and the number of employees.
    \618\ We are adopting an alternative reporting option as part of 
the final rules and recognizing the disclosure requirements of these 
jurisdictions to be substantially similar to our rules. Thus, for 
these issuers, the additional cost will be negligible compared to 
the compliance costs we consider in this section. See also Section 
III.C.2 below.
---------------------------------------------------------------------------

    Second, among the remaining 563 issuers (i.e., 755 minus 192) we 
searched for issuers that, in the most recent fiscal year as of the 
date of their Exchange Act annual report filing, reported that they are 
shell companies, and, thus, have no or only nominal operations, or have 
both revenues and absolute value net cash flows from investing 
activities of less than the de minimis payment threshold of $100,000. 
Under those financial constraints, such issuers are unlikely to have 
made any non-de minimis and otherwise reportable payments to 
governments and therefore are unlikely to be subject to the adopted 
reporting requirements. We identified 138 such issuers.
    Taking these estimates of the number of excluded issuers together, 
we estimate that approximately 425 issuers (i.e., 755 minus 192 minus 
138) would bear the full costs of compliance with the final rules.\619\
---------------------------------------------------------------------------

    \619\ Because it may be uncertain at the beginning of a 
financial period as to whether payments from an issuer will exceed 
the de minimis threshold by the end of such period, an excluded 
issuer may incur costs to collect the information to be reported 
under the final rules even if that issuer is not subsequently 
required to file an annual report on Form SD. To the extent that 
excluded issuers incur such costs, our estimate may understate the 
aggregate compliance costs associated with the final rules.

---------------------------------------------------------------------------

[[Page 49408]]

    To establish an upper and lower bound for the initial compliance 
costs estimates, we use the initial compliance cost estimates from 
Barrick Gold and ExxonMobil referenced above. We note, however, that 
these cost estimates were provided by the commenters during the comment 
period after the 2010 Proposing Release and were based on policy 
choices made in that proposal and reflected the other international 
regulatory regimes in place at that time.\620\ Since then we have 
changed our approach (e.g., the final rules define the term ``control'' 
based on accounting principles, which we believe will be easier and 
less costly for issuers to apply) \621\ and international reporting 
regimes have undergone considerable development.\622\ These 
developments are likely to significantly lower the compliance costs 
associated with the final rules. However, as noted above, we have not 
received comment letters with reliable quantitative assessments of the 
extent to which these changes would reduce commenters' cost estimates 
and, thus, we use the original commenters' estimates without 
adjustment.
---------------------------------------------------------------------------

    \620\ We note, in particular, that Barrick Gold is incorporated 
in Canada and listed on the Toronto Stock Exchange and thus is 
subject to substantially similar foreign disclosure requirements 
under existing international transparency regimes.
    \621\ See Section II.D of the Proposing Release.
    \622\ In this regard, we note that some affected issuers, even 
if they are not subject to foreign disclosure requirements, might 
have subsidiaries or other entities under their control that are 
subject to such requirements. These issuers will thus face lower 
compliance costs because they will already have incurred some of 
these costs through such subsidiaries and other controlled entities.
---------------------------------------------------------------------------

    Our methodology to estimate initial compliance costs applies the 
specific issuer cost estimates from Barrick Gold and ExxonMobil, 
$500,000 and $50,000,000, respectively,\623\ to the average issuer and 
then multiplies the costs by the number of affected issuers. However, 
because Barrick Gold and ExxonMobil are very large issuers and their 
compliance costs may not be representative of significantly smaller 
issuers, we apply these costs to all potentially affected issuers as a 
percentage of total assets. This allows for the compliance cost 
estimate for each potentially affected issuer to vary by their size, 
consistent with our expectation that larger issuers will face higher 
compliance costs. For example, we expect larger, multinational issuers 
to need more complex payment tracking systems compared to smaller, 
single country based issuers. This approach is consistent with the 
method used in the 2012 Adopting Release, where we estimated the 
initial compliance costs to be between 0.002% and 0.021% of total 
assets.\624\
---------------------------------------------------------------------------

    \623\ Barrick Gold estimated that it would require 500 hours for 
initial changes to internal books and records and processes and 500 
hours for ongoing compliance costs. At an hourly rate of $400, this 
amounts to $400,000 (1,000 hours * $400) for hourly compliance 
costs. Barrick Gold also estimated that it would cost $100,000 for 
initial IT/consulting and travel costs, for a total initial 
compliance cost of $500,000. A similar analysis by ExxonMobil 
estimated their initial compliance costs to be $50 million. See 2012 
Adopting Release, Section III.D for details.
    \624\ See 2012 Adopting Release at Section III.D for details 
(the approach we use here is referred to as Method 1 in that 
release). In the 2012 Adopting Release, we also used another method 
(referred to as Method 2) to estimate compliance costs. With Method 
2, we first estimated the compliance costs for small and large 
issuers (as determined by market capitalization) using the same 
assumptions as in Method 1 that compliance costs are a constant 
fraction of issuer's total assets (i.e., that all costs are variable 
and there is no fixed component to the costs) and then aggregated 
the compliance costs for all issuers. Although this approach was 
intended to provide limited insight into any differential cost 
impacts on small versus large issuers, it did not separate fixed and 
variable cost components of the total compliance costs. Therefore, 
it did not allow us to apply a differential cost structure to small 
and large issuers. In addition, because of poor data availability 
and data quality on market capitalization for small and foreign 
issuers, the Method 2 approach may yield less accurate estimates 
than the approach we use in this release (on the other hand, Method 
1 could be properly applied because we collected total assets data 
for all affected issuers). As a consequence, we now believe that the 
disaggregation and subsequent aggregation of small and large issuer 
cost estimates does not provide additional insights into the 
difference in cost structure for small versus large issuers and any 
effects of this difference on the aggregate costs. Consequently, we 
have used only one estimation approach in this analysis. As 
discussed below, however, we do believe that there is a fixed 
component to the compliance costs which could potentially have a 
differential impact on small issuers, and we have expanded the 
Method 1 approach to allow for a fixed costs component in the cost 
structure. We requested comments about the breakdown of the 
compliance costs into the fixed and variable components to enable us 
to estimate such impact better, but we have not received any 
comments quantifying such breakdown.
---------------------------------------------------------------------------

    We calculate the average total assets of the 425 potentially 
affected issuers to be approximately $6.4 billion.\625\ Applying the 
ratio of initial compliance costs to total assets (0.002%) from Barrick 
Gold, we estimate the lower bound of total initial compliance costs for 
all issuers to be $54.73 million (0.002% * $6,439,369,000 * 425). 
Applying the ratio of initial compliance costs to total assets (0.021%) 
from ExxonMobil, we estimate the upper bound of total initial 
compliance costs for all issuers to be $574.7 million (0.021% * 
$6,439,369,000 * 425). The table below summarizes the upper and lower 
bound of total initial compliance costs under the assumption that 
compliance costs vary according to the issuer's size.
---------------------------------------------------------------------------

    \625\ For the 425 potentially affected issuers, we collected 
their total assets for the fiscal year that corresponds to their 
Exchange Act annual reports for 2015 from XBRL exhibits that 
accompany issuers' annual reports on EDGAR and from Compustat. If 
these two data sources varied on an issuer's total assets, we used 
the higher of the two values. For the remaining issuers that do not 
have total assets data from either of these two data sources, we 
manually collected the data on total assets from their filings. We 
then calculated the average of those total assets across all issuers 
that have the data.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
    Average issuer initial compliance costs            Calculation
            assuming no fixed costs
------------------------------------------------------------------------
Average 2015 total assets of     $6,439,369,000  .......................
 all affected issuers.......
Average initial compliance              128,787    $6,439,369,000*0.002%
 costs per issuer using
 Barrick Gold percentage of
 total assets (lower bound).
Total initial compliance             54,734,640              128,787*425
 costs using Barrick Gold
 (lower bound)..............
Average initial compliance            1,352,268     6,439,369,000*0.021%
 costs per issuer using
 ExxonMobil's percentage of
 total assets (upper bound).
Total initial compliance            574,713,700            1,352,268*425
 costs using ExxonMobil
 (upper bound)..............
------------------------------------------------------------------------

    We also recognize that it is possible that some compliance costs 
may not scale by issuer size and as a result smaller issuers may be 
subject to certain fixed costs that do not vary with the size of the 
issuers' operations. While commenters did not provide any information 
on what fraction of the initial compliance costs would be fixed versus 
variable, we assume that fixed costs are equal to $500,000--the lower 
of the two compliance cost estimates provided by commenters.\626\ To 
find the

[[Page 49409]]

lower and upper bound estimates of compliance costs in this case, we 
assume that each issuer's costs are the maximum between the fixed costs 
of $500,000 and, respectively, the lower bound (0.002% of total assets) 
or the upper bound (0.021% of total assets) of the variable costs. 
Applying these lower and upper bounds to each issuer and summing across 
all issuers, we find that the lower bound estimate is $239 million (or, 
on average, $0.56 million per issuer) and the upper bound estimate is 
$700 million (or, on average, $1.65 million per issuer).
---------------------------------------------------------------------------

    \626\ Assuming that both estimates are accurate, the fixed costs 
cannot be higher than the lower of the two estimates. We have chosen 
to use the highest possible value of fixed costs satisfying this 
restriction to encompass the widest range of cost estimates. We have 
not received any comment letters with estimates of the fixed cost 
component of the initial compliance costs or addressing the 
estimates presented in the Proposing Release.
---------------------------------------------------------------------------

    The table below summarizes the upper and lower bound of total 
initial compliance costs under two fixed costs assumptions.\627\ We 
note that our upper bound estimates are consistent with two commenters' 
qualitative estimates of initial implementation costs \628\ and the 
initial costs estimate from another commenter \629\ is within our range 
for the no-fixed costs case. We also note that, if the actual fixed 
costs component is between $0 and $500,000, the lower and upper bounds 
of compliance costs estimates would be between our estimates for the 
two opposite cases.
---------------------------------------------------------------------------

    \627\ The total estimated compliance cost for PRA purposes is 
$79,302,480. See Section IV below. The compliance costs for PRA 
purposes are encompassed in the total estimated compliance costs for 
issuers. As discussed in detail below, our PRA estimate includes 
costs related to tracking and collecting information about different 
types of payments across projects, governments, countries, 
subsidiaries, and other controlled entities. The estimated costs for 
PRA purposes are calculated by treating compliance costs as fixed 
costs and by only monetizing costs associated with outside 
professional services. Therefore, despite using similar inputs for 
calculating these costs, the PRA estimate differs from the lower and 
upper bounds calculated above.
    \628\ See letters from API 1 (pre-proposal) (``Total industry 
costs just for the initial implementation could amount to hundreds 
of millions of dollars even assuming a favorable final decision on 
audit requirements and reasonable application of accepted 
materiality concepts.'') and ExxonMobil 1 (pre-proposal).
    \629\ See letter from Claigan (estimating of the total initial 
compliance costs as $181,347,000).

----------------------------------------------------------------------------------------------------------------
                                                     Initial compliance costs        Initial compliance costs
                                                      assuming no fixed costs         assuming fixed costs of
                                                 --------------------------------            $500,000
                                                                                 -------------------------------
                                                   Costs for an     Total costs    Costs for an
                                                  average issuer                  average issuer    Total costs
----------------------------------------------------------------------------------------------------------------
Lower bound.....................................        $128,787     $54,734,640        $561,932    $238,820,900
Upper bound.....................................       1,352,268      74,713,700       1,547,437     700,160,800
----------------------------------------------------------------------------------------------------------------

    We acknowledge significant limitations on our analysis that may 
result in the actual costs being significantly lower. First, the 
analysis is limited to two large issuers' estimates from two different 
industries, mining and oil and gas, and the estimates may not 
accurately reflect the initial compliance costs of all affected 
issuers. Second, the commenters' estimates were generated based on our 
initial proposal and they do not reflect the final rules or the 
international transparency regimes that subsequently have been adopted 
by other jurisdictions.\630\
---------------------------------------------------------------------------

    \630\ See, e.g., Section II.D and note 622 and accompanying 
text.
---------------------------------------------------------------------------

    We also acknowledge certain limitations on our analysis that could 
potentially cause the cost to be higher than our estimates. First, we 
assume that the variable part of the compliance costs is a constant 
fraction of total assets, but the dependence of costs on issuer size 
might not be linear (e.g., costs could grow disproportionally faster 
than issuer assets). Second, commenters mentioned other potential 
compliance costs not necessarily captured in this discussion of 
compliance costs.\631\
---------------------------------------------------------------------------

    \631\ Those could include, for example, costs associated with 
the termination of existing agreements in countries with laws that 
prohibit the type of disclosure mandated by the final rules, costs 
of decreased ability to bid for projects in such countries in the 
future, or costs of decreased competitiveness with respect to non-
reporting entities. Commenters generally did not provide estimates 
of such costs. As discussed further below, we have attempted to 
estimate the costs associated with potential foreign law 
prohibitions on providing the required disclosure.
---------------------------------------------------------------------------

    In spite of these limitations, we consider our quantitative 
approach to estimate compliance costs to be appropriate and supported 
by the limited data we have. During the comment period after the 
Proposing Release, no commenters specifically critiqued this method or 
the derived quantitative estimates or provided additional data that we 
could use to update or refine these estimates. Only one commenter 
supplied an alternative approach and its point estimates are within the 
range of our estimates for both initial and ongoing direct compliance 
costs.\632\
---------------------------------------------------------------------------

    \632\ See letter from Claigan and notes 629 above and 636 below. 
This commenter's approach was not critiqued or refined by other 
commenters during the extended comment rebuttal period.
---------------------------------------------------------------------------

    We estimate ongoing compliance costs using the same method under 
the assumptions of no fixed costs and fixed costs of $200,000 per year 
(as explained below). In response to the 2010 Proposing Release, we 
received quantitative information from three commenters--Rio Tinto, 
National Mining Association, and Barrick Gold--that we used in the 
analysis.\633\ As in the 2012 Adopting Release, we use these three 
comments to estimate the ongoing compliance costs as a percentage of 
total assets to be 0.003%, 0.02%, and 0.0008%, respectively, and the 
average ongoing compliance costs to be 0.0079% of total assets.\634\ 
For the no fixed costs

[[Page 49410]]

case, we take the average total assets for all affected issuers, 
$6,439,369,000, and multiply it by a constant fraction (either the 
lower bound of 0.0008%, the average of 0.0079%, or the upper bound of 
0.02%) of total assets and the number of affected companies (425) to 
get the total lower bound, the average, and the upper bound of the 
annual ongoing compliance costs estimates.
---------------------------------------------------------------------------

    \633\ See letters from Barrick Gold (pre-proposal); Rio Tinto 
(pre-proposal); and NMA 2 (pre-proposal). We apply the same caveat 
as in the initial compliance cost estimates above, namely, that 
these cost estimates were provided by the commenters during the 
comment period after the 2010 Proposing Release and were based on 
policy choices made in that proposal. Discretionary choices 
reflected in the final rules and recent international developments 
could significantly lower the cost estimates. We also note that both 
Barrick Gold (incorporated in Canada and listed on the Toronto Stock 
Exchange) and Rio Tinto (incorporated in the United Kingdom and 
listed on the London Stock Exchange) are subject to substantially 
similar disclosure requirements under existing international 
transparency regimes.
    \634\ We estimate the cost percentages as follows: Rio Tinto 
estimated that it would take between 5,000 and 10,000 hours per year 
to comply with the requirements, for a total ongoing compliance cost 
of between $2 million (5,000*$400) and $4 million (10,000*$400). We 
use the midpoint of their estimate, $3 million, as their expected 
ongoing compliance cost. The National Mining Association (NMA), 
which represents the mining industry, estimated that ongoing 
compliance costs would be 10 times our initial estimate from the 
2010 Proposing Release, although it did not state specifically the 
number to which it referred. We believe NMA was referring to our 
proposed estimate of $30,000. Although this is the dollar figure for 
total costs, NMA referred to it when providing an estimate of 
ongoing costs, so we do the same here, which would result in 
$300,000 (10*$30,000). Finally, Barrick Gold estimated that it would 
take 500 hours per year to comply with the requirements, or $200,000 
(500*$400) per year. As with the initial compliance costs, we 
calculate the ongoing compliance cost as a percentage of total 
assets. Rio Tinto's total assets as of the end of fiscal year 2009 
were approximately $97 billion and their estimated ongoing 
compliance costs as a percentage of assets is 0.003% ($3,000,000/
$97,236,000,000). We calculated the average total assets of the 
mining industry to be $1.5 billion, and using NMA's estimated 
ongoing compliance costs, we estimate ongoing compliance costs as a 
percentage of assets to be 0.02% ($300,000/$1,515,000,000). Barrick 
Gold's total assets as of the end of fiscal year 2009 were 
approximately $25 billion and their estimated ongoing compliance 
costs as a percentage of assets is 0.0008% ($200,000/
$25,075,000,000). See 2012 Adopting Release at Section III.D for 
details.
---------------------------------------------------------------------------

    Similar to our estimates of the initial costs, we then consider 
fixed costs equal to the lowest of three estimates given by the 
commenters, the Barrick Gold estimate of $200,000 per year.\635\ To 
find the lower and upper bound estimates, we assume that each issuer's 
costs are the maximum between the fixed costs of $200,000 and either 
the lower bound (0.0008% of total assets) or the upper bound (0.02% of 
total assets) of the variable costs, respectively. Applying these lower 
and upper bounds to each issuer and summing across all issuers, we find 
that the lower bound estimate is $96 million per year (or, on average, 
$0.22 million per issuer per year) and the upper bound estimate is $591 
million per year (or, on average, $1.39 million per issuer per year). 
Our estimates are summarized in the following table. We note that the 
ongoing costs estimate from one commenter \636\ is within our range of 
the no-fixed costs case. We also note that, if the actual fixed costs 
component is between $0 and $200,000, the lower and upper bounds of 
compliance costs estimates would be between our lower and upper bounds 
estimates for the two opposite fixed costs cases.
---------------------------------------------------------------------------

    \635\ Similarly to the initial compliance costs, assuming that 
both estimates are accurate, the fixed costs cannot be higher than 
the lowest of the estimates. We have chosen to use the highest 
possible value of fixed costs satisfying this restriction to 
encompass the widest range of cost estimates. We have not received 
any comment letters with estimates of the fixed cost component of 
the ongoing compliance costs or addressing the estimates presented 
in the Proposing Release.
    \636\ See letter from Claigan (estimating the total ongoing 
compliance costs as $73,747,875).

 
----------------------------------------------------------------------------------------------------------------
                                       Annual ongoing compliance       Annual ongoing compliance
                                     costs under the assumption of   costs under the assumption of
                                            no fixed costs              fixed costs of $200,000
                                   ---------------------------------------------------------------
                                     Costs for an                    Costs for an
                                    average issuer    Total costs   average issuer    Total costs
--------------------------------------------------------------------------------------------------
Lower bound.......................         $51,515     $21,893,860        $224,773     $95,528,370
Average...........................         508,710     216,201,800         628,380     267,061,300
Upper bound.......................       1,287,874     547,346,400       1,389,882     590,699,900
----------------------------------------------------------------------------------------------------------------

    As noted above, we expect that the initial and ongoing compliance 
costs associated with the final rules are likely to be greater for 
larger, multinational issuers as compared to smaller, single country 
based issuers, as larger issuers would likely need more complex systems 
to track and report the required information. However, to the extent 
there is a significant fixed component to the final rules' overall 
compliance costs, such costs could be disproportionately burdensome for 
smaller reporting companies. In this case, the final rules could give 
rise to competitive disadvantages for these smaller issuers and could 
provide incentive for these issuers to consider exiting public capital 
markets to avoid reporting requirements (possibly incurring a higher 
cost of capital and potentially limited access to capital in the 
future). We estimate that approximately 43% of affected issuers are 
smaller reporting companies.\637\ Nevertheless, given the fact that 
smaller issuers constitute a significant portion of the public 
reporting companies making resource extraction payments, exempting 
these issuers from the final rules could significantly diminish the 
expected benefits of the required disclosure.
---------------------------------------------------------------------------

    \637\ As discussed in this section above, our estimate of the 
number of affected issuers already excludes 138 issuers that are 
shell companies or whose reported revenues and net cash flows from 
investing activities suggest that they are unlikely to make payments 
above the de minimis threshold. If we apply a significantly higher 
threshold ($250,000, $500,000, $750,000, or $1,000,000) to revenues 
and cash flows from investing to estimate the number of such 
issuers, we would exclude a slightly higher number of issuers from 
our cost estimates (162, 176, 191, or 203, respectively). 
Nonetheless, for the reasons described above, we believe that we 
have set the de minimis threshold at an appropriate level. See also 
Section II.C above and Section II.C.2 of the Proposing Release.
---------------------------------------------------------------------------

c. Indirect Costs and Competitive Effects

    In addition to direct compliance costs, we anticipate that the 
statutory reporting requirements could result in significant indirect 
effects. Issuers that have a reporting obligation under Section 13(q) 
could be at a competitive disadvantage compared to private companies 
and foreign companies that are not subject to the reporting 
requirements of the U.S. federal securities laws and therefore do not 
have such an obligation. For example, such competitive disadvantage 
could result from, among other things, any preference by the government 
of the host country to avoid disclosure of covered payment information, 
or any ability of market participants to use the information disclosed 
by reporting issuers to derive contract terms, reserve data, or other 
confidential information. The Commission lacks sufficient data or a 
sufficiently reliable methodology to compare quantitatively total 
benefits against total costs, and no commenter has provided us with 
data regarding competitive effects or suggested a methodology that 
would allow us to engage in an empirical evaluation.
    Industry commenters on the 2010 Proposing Release stated that 
confidential production and reserve data can be derived by competitors 
or other interested persons with industry knowledge by extrapolating 
from the payment information required to be disclosed.\638\ Other 
commenters asserted, however, that such extrapolation is not possible 
or that such information is readily available from certain commercial 
databases. These commenters stated that information of the type 
required to be disclosed by Section 13(q) therefore would not confer a 
competitive advantage on industry participants not subject to such 
disclosure requirements.\639\ Another commenter

[[Page 49411]]

prior to the Proposing Release expressed the view that project level 
reporting will not disclose confidential information of affected 
issuers or result in competitive disadvantage for such issuers relative 
to either owners of natural resources or to competitive resource 
producers, including state enterprises, who would be otherwise 
unencumbered by such reporting requirements.\640\ Commenters on the 
Proposing Release were also split in their opinion on the competitive 
effect of payment information disclosure, asserting views similar to 
those described above.\641\ Whatever the effect, any competitive impact 
arising from Section 13(q)'s mandated disclosures should be minimal in 
those jurisdictions in which payment information of the types covered 
by Section 13(q) is already publicly available.\642\ In addition, any 
competitive impact should be substantially reduced to the extent that 
other jurisdictions, such as the European Union and Canada, have 
adopted laws that require disclosure similar to the disclosure required 
by Section 13(q) and the final rules.\643\ We note, however, that if 
commenters are accurate in their assessment of the competitive effects 
arising from such disclosure requirements, some U.S. issuers that are 
not subject to the EU Directives or other international disclosure 
regimes might lose some of the competitive advantage they otherwise 
would enjoy from not being obligated to disclose their resource 
extraction payments.
---------------------------------------------------------------------------

    \638\ See letters from API 1 (pre-proposal); ExxonMobil 1 (pre-
proposal); and RDS 2 (pre-proposal).
    \639\ See letters from PWYP 1 (pre-proposal) and Oxfam 1 (pre-
proposal).
    \640\ See letter from Conrad (pre-proposal).
    \641\ See letters from API 1, ExxonMobil 1, PWYP-US 1, Oxfam 1.
    \642\ In this regard, we note that one commenter provided 
several examples of countries in which payments are publicly 
disclosed on a lease or concession level. See letter from PWYP 3.
    \643\ One commenter suggested that if both the United States and 
European Union implement disclosure requirements regarding payments 
to governments ``around 90% of the world's extractive companies will 
be covered by the rules.'' See letter from Arlene McCarthy (Aug. 10, 
2012) (Ms. McCarthy is a member of the European Parliament and the 
parliamentary draftsperson on the EU transparency rules for the 
extractive sector).
---------------------------------------------------------------------------

    To the extent that the requirement to disclose payment information 
does impose a competitive disadvantage on an issuer, the issuer could 
be motivated to sell assets affected by such competitive disadvantage 
at a price that does not fully reflect the value of such assets absent 
such competitive impact.\644\ One commenter on the 2010 Proposing 
Release stated that tens of billions of dollars of capital investments 
could potentially be put at risk if issuers were required to disclose, 
pursuant to the final rules, information prohibited by a host country's 
laws or regulations.\645\ Additionally, according to commenters, 
resource extraction issuers operating in countries that prohibit, or 
could in the future prohibit, the disclosure required under the 
proposed rules could bear substantial costs.\646\ As discussed below, 
commenters have presented conflicting positions and representations 
concerning the prevalence and scope of such foreign law prohibitions, 
with some commenters on the Proposing Release observing that issuers 
filing in certain foreign jurisdictions are providing payment 
disclosure in respect of countries that allegedly prohibit 
disclosure.\647\ In the event that such foreign law prohibitions exist, 
or are adopted in the future, pursuant to our existing Exchange Act 
authority, we will consider requests for exemptive relief on a case-by-
case basis and may grant such relief, if and when warranted. The 
economic implications of providing or not providing such relief are 
discussed below in Section III.C.1.
---------------------------------------------------------------------------

    \644\ For example, a study on divestitures of assets find that 
issuers that undertake voluntary divestitures have positive stock 
price reactions, but also finds that issuers forced to divest assets 
due to action undertaken by the antitrust authorities suffer a 
decrease in shareholder value. See Kenneth J. Boudreaux, 
``Divestiture and Share Price.'' Journal of Financial and 
Quantitative Analysis 10 (Sept. 1975), 619-26. See also, G. Hite and 
J. Owers. ``Security Price Reactions around Corporate Spin-Off 
Announcements.'' Journal of Financial Economics 12 (Dec. 1983), 409-
36 (finding that issuers spinning off assets because of legal/
regulatory difficulties experience negative stock returns).
    \645\ See letter from RDS 4 (pre-proposal).
    \646\ See Section II.I.2 above.
    \647\ See notes 379 and 402 above.
---------------------------------------------------------------------------

    Addressing other potential costs, one commenter on the 2010 
Proposing Release referred to a potential economic loss borne by 
shareholders, without quantifying such loss, which the commenter 
believed could result from highly disaggregated public disclosure of 
competitively sensitive information causing competitive harm.\648\ The 
commenter also noted resource extraction issuers could suffer 
competitive harm because they could be excluded from many future 
projects altogether. The same commenter also noted that because energy 
underlies every aspect of the economy, these negative impacts could 
potentially have repercussions well beyond resource extraction 
issuers.\649\
---------------------------------------------------------------------------

    \648\ See letter from API 1 (pre-proposal).
    \649\ See id.
---------------------------------------------------------------------------

    Some commenters on the 2010 Proposing Release suggested that we 
permit issuers to submit payment data confidentially to the Commission 
and make public only an aggregated compilation of the information.\650\ 
The commenters suggesting that the Commission make public only a 
compilation of information stated that such an approach would address 
many of their concerns about the disclosure of commercially sensitive 
or legally prohibited information and would significantly mitigate the 
costs of the mandatory disclosure under Section 13(q). One commenter on 
the Proposing Release made a similar suggestion.\651\ As noted above, 
we did not permit confidential submissions in the 2012 Rules, and the 
current final rules are generally consistent with that approach. As a 
result, the final rules require public disclosure of the payment 
information. We note that in situations involving more than one 
payment, the information would be aggregated by payment type, 
government, and/or project, which may limit the ability of competitors 
to use the publicly disclosed information to their advantage. Also, a 
company can combine more than one contract into a project, which may 
further limit the ability of competitors to use the information. 
Further, we are providing a limited exemption for payments in 
connection with exploratory activities, which should further reduce the 
potential competitive effects that might result from disclosure of 
payment information.\652\ For other situations of potential substantial 
competitive harm, we will consider applications for exemptive relief 
from the proposed disclosure requirements on a case-by-case basis and 
may grant such relief, if and when warranted (similar to our approach 
with potential foreign law prohibitions).\653\ In opting to provide a 
categorical exemption for new exploratory operations but to rely on 
case-by-case exemptive relief for potential competitive harms 
associated with ongoing projects, we credit the position advanced by 
the API that the payment terms of older contracts are generally 
publicly known (even if not technically disclosed).\654\ Consequently, 
the disclosure of payment information relating to these projects is 
less likely to produce competitive harm than payments relating to, for 
example, exploratory activities.
---------------------------------------------------------------------------

    \650\ See Section II.G.2 of the Proposing Release.
    \651\ See letter from API 1.
    \652\ This exemption would not significantly frustrate the 
transparency goals of the final rules. An issuer that would rely on 
the exemption for its payments made in connection with exploratory 
activities would have to disclose such payment information in its 
Form SD filing for the fiscal year following the fiscal year in 
which the payment was made. See Section II.I.3 for details.
    \653\ See Section II.I above.
    \654\ See API 1.

---------------------------------------------------------------------------

[[Page 49412]]

    As noted above, the cost of compliance with this provision would be 
primarily borne by the issuer thus potentially diverting capital away 
from other productive opportunities and resulting in a loss of 
allocative efficiency.\655\ Such effects may be partially offset over 
time if increased transparency of resource extraction payments reduces 
corrupt practices by governments of resource-rich countries and in turn 
helps promote improved economic development and higher economic growth 
in those countries. In this regard, as discussed above in Section 
III.B.1, a number of economic studies have shown that reducing 
corruption can help promote higher economic growth through more private 
investments, better deployment of human capital, and political 
stability.\656\
---------------------------------------------------------------------------

    \655\ See letter from Chevron. See also letter from Chairman 
Bachus and Chairman Miller. As discussed above in note 615, there is 
some uncertainty regarding who would bear the ultimate costs of 
compliance. Regardless of who bears the majority of the compliance 
costs, we believe that the effects on allocative efficiency and 
capital flows would likely be similar.
    \656\ See note 561 above and accompanying text.
---------------------------------------------------------------------------

C. Potential Effects Resulting From Specific Implementation Choices

    As discussed in detail in Section II, the Proposing Release 
specifically addressed matters identified in the U.S. District Court 
for the District of Columbia's decision in the API Lawsuit. In 
developing the final rules, in addition to those matters, we have also 
considered relevant international developments, input from staff 
consultations with other U.S. Government agencies, and the public 
comments that we have received. We discuss below the significant 
choices that we are making to implement the statute and the associated 
benefits and costs of those choices. We are unable to quantify the 
impact of each of the choices discussed below with precision because 
reliable, empirical evidence about the effects is not readily available 
to the Commission and commenters have not provided us with empirical 
evidence relating to these various choices.
1. Exemption from Compliance
    Absent potential exemptive relief, resource extraction issuers 
operating in countries that prohibit, or may in the future prohibit, 
the disclosure required under Section 13(q) could bear substantial 
costs.\657\ Such costs could arise if issuers have to choose between 
ceasing operations in certain countries or violating local law, or if 
the country's laws have the effect of preventing them from 
participating in future projects. Some commenters on the 2010 Proposing 
Release asserted that four countries have such laws.\658\ Other 
commenters disputed the assertion that there are foreign laws that 
specifically prohibit disclosure of payment information.\659\ After 
reviewing the comment letters on the Proposing Release, we note that 
some commenters continue to assert that at least two countries--Qatar 
and China--prohibit the required disclosures whereas commenters no 
longer assert that two other countries mentioned in earlier comment 
letters--Angola and Cameroon--prohibit the disclosure.\660\ Although we 
are not making any final determinations at this stage, as discussed 
above, we anticipate obtaining more information about companies' 
experiences with the disclosures under the EU Directives and ESTMA in 
the near term, which should assist the Commission in deciding whether 
any type of case-by-case exemptive relief is appropriate before the 
first reports are due under the final rules in two years.
---------------------------------------------------------------------------

    \657\ See Section II.I.2 above.
    \658\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal) (mentioning Angola, Cameroon, China, and Qatar). See 
also letter from RDS 2 (pre-proposal) (mentioning Cameroon, China, 
and Qatar).
    \659\ See notes 379 and 402 above.
    \660\ See letter from API 1.
---------------------------------------------------------------------------

    To the extent that such prohibitions exist and are enforced without 
any type of waiver, affected issuers could suffer substantial losses if 
they have to terminate their operations and redeploy or dispose of 
their assets in the particular foreign jurisdiction. These losses would 
be magnified if an issuer cannot redeploy the assets in question 
easily, or if it has to sell them at a steep discount (a fire sale). 
Even if the assets could be easily redeployed, an issuer could suffer 
opportunity costs if they are redeployed to projects with inferior 
rates of return. In the 2012 Adopting Release we estimated that such 
losses could amount to billions of dollars. One commenter on the 
Proposing Release also asserted that such losses could be in the tens 
of billions of dollars.\661\
---------------------------------------------------------------------------

    \661\ See letters from ExxonMobil 1 and ExxonMobil 2.
---------------------------------------------------------------------------

    In addition to the costs described above, a foreign private issuer 
with operations in a country that prohibits disclosure of covered 
payments, or a foreign issuer that is domiciled in such country, might 
face different types of costs. For example, in these circumstances, an 
issuer might decide it is necessary to delist from an exchange in the 
United States, deregister, and cease reporting with the 
Commission,\662\ thus incurring a higher cost of capital and 
potentially limited access to capital in the future. Based on our 
experience with issuers and the securities markets, we believe this is 
highly unlikely given that, at least for larger resource extraction 
issuers, they generally seek access to capital through publicly-traded 
securities markets and many of the major foreign securities exchanges 
on which a resource extraction issuer might seek to trade its 
securities are now subject to laws that are substantially similar to 
the final rules. Nonetheless, we acknowledge that should this occur, 
shareholders, including U.S. shareholders, might suffer an economic and 
informational loss if an issuer decides it is necessary to deregister 
and cease reporting under the Exchange Act in the United States as a 
result of the final rules.
---------------------------------------------------------------------------

    \662\ See letters from Branden Carl Berns (Dec. 7, 2011) 
(``Berns (pre-proposal)'') and API 1.
---------------------------------------------------------------------------

    We believe that there are a number of factors that may serve to 
diminish the likelihood that, to the extent that there are or will be 
foreign laws that prohibit the required disclosures, such laws would be 
retained or adopted or, if retained or adopted, may serve to mitigate 
the costs and competitive burdens arising from their impact. For 
example, the widening global influence of the EITI and the recent trend 
of other jurisdictions to promote transparency, including listing 
requirements adopted by the Hong Kong Stock Exchange \663\ and the 
requirements adopted pursuant to the EU Directives and ESTMA, may 
discourage governments in resource-rich countries from retaining or 
adopting prohibitions on payment disclosure. Resource extraction 
issuers concerned that disclosure required by Section 13(q) may be 
prohibited in a given host country may also be able to seek 
authorization from the host country to disclose such information.\664\ 
Commenters did not provide estimates of the cost that might be incurred 
to seek such an authorization, and we are unaware of any probative 
data.
---------------------------------------------------------------------------

    \663\ See Proposing Release, n.70.
    \664\ See letter from Oxfam-ERI (stating that ``Qatar 
government's Model Production Sharing Agreement (PSA) contains a 
carveout clause allowing a party to disclose any information that 
might otherwise be deemed confidential, when required by applicable 
laws and regulations. In the absence of express prohibitions on 
disclosure, the terms of this contract control confidentiality of 
information related to each project''). The legal opinions submitted 
by Royal Dutch Shell with its pre-proposal comment letter also 
indicate that disclosure of otherwise restricted information may be 
authorized by government authorities in Cameroon and China, 
respectively. See letter from RDS 2 (pre-proposal).

---------------------------------------------------------------------------

[[Page 49413]]

    In addition, these potential costs could be substantially mitigated 
under the final rules. We intend to consider using our existing 
authority under the Exchange Act to provide exemptive relief on a case-
by-case basis, if and when warranted, upon the request of a resource 
extraction issuer.\665\ As mentioned above, we believe that a case-by-
case approach to exemptive relief is preferable to either including 
within the final rules a blanket exemption where foreign law prohibits 
disclosure (or for any other reason) or providing no exemptions and no 
avenue for exemptive relief under this or other circumstances. This is 
particularly so given the increasing uncertainty about the existence 
and scope of such laws and the likelihood that the Commission will have 
a more informed basis to assess the need for exemptive relief as more 
companies begin to report under the EU Directives and ESTMA. The final 
approach should significantly decrease compliance and economic costs to 
the extent that issuers are able to demonstrate that an exemption where 
host country laws prohibit disclosure is warranted. Indeed, assuming 
such laws exist and that the Commission determines to grant an 
exemption from the final rules, this approach could potentially save 
affected issuers billions of dollars in compliance and economic 
costs.\666\
---------------------------------------------------------------------------

    \665\ See discussion in Section II.I above.
    \666\ We note, however, that in addition to reducing costs, 
granting an exemption might diminish some of the benefits of 
enhanced transparency as well.
---------------------------------------------------------------------------

    An alternative to using our exemptive authority on a case-by-case 
basis would be to provide an exemption where specific countries have a 
law prohibiting the required disclosure. Although a blanket exemption 
could reduce potential economic costs (e.g., costs of relocating 
assets) and compliance costs (e.g., costs associated with applying for 
the exemption) for issuers if they are subject to foreign law 
prohibitions on disclosure, it could create a stronger incentive for 
host countries that want to prevent transparency to pass laws that 
prohibit such disclosure, potentially undermining the purpose of 
Section 13(q) to compel disclosure in foreign countries that have 
failed to voluntarily do so.\667\ It also would remove any incentive 
for issuers to diligently negotiate with host countries for permission 
to make the required disclosures. Furthermore, it would make it more 
difficult to address any material changes over time in the laws of the 
relevant foreign countries, thereby resulting in an outdated blanket 
exemption. By contrast, the tailored case-by-case consideration of 
exemptions we intend to pursue will provide a more flexible and 
targeted mechanism for the Commission to address potential cost 
concerns while minimizing incentives for host countries to enact laws 
prohibiting disclosure.\668\
---------------------------------------------------------------------------

    \667\ See, e.g., 156 Cong. Rec. S3815 (May 17, 2010) (Statement 
of Senator Cardin) (``We currently have a voluntary international 
standard for promoting transparency. . . . But too many countries 
and too many companies remain outside this voluntary system.''). A 
blanket exemption would incentivize host countries that want to 
prevent transparency to enact laws prohibiting the disclosure 
without suffering the cost of decreasing the number of potential 
bidders on--and competition for--projects within their 
jurisdictions, and thus without the cost of decreasing the potential 
value realized to the host country from awarding a contract. We note 
that one commenter on the Proposing Release stated that we had 
failed to explain why a case-by-case exemptive approach would not 
create the very same incentives. See letter from API 1. We think 
this is unlikely, and the incentives to adopt such laws would be 
mitigated for the following reasons: a host country government would 
realize that there is greater uncertainty in exemption application 
approval; any exemptive relief granted under a case-by-case approach 
may be time limited or otherwise tailored, unlike a blanket 
exemption; and countries may realize that by adopting such a law, 
they are reducing the pool of potential competitors for in-country 
projects, as issuers may be reluctant to bid for contracts in 
countries that prohibit disclosure, if they do not know upfront that 
they will be granted an exemption. Thus, enacting laws prohibiting 
disclosure could reduce the number of potential bidders on resource 
extraction projects within host countries jurisdictions and, due to 
possible costs and uncertainty of the exemption application, the 
bids on such projects would be lower.
    \668\ Although not providing a blanket exemption could 
potentially discourage some companies from listing on U.S. 
exchanges, the advantage to these companies from being outside of 
the final rules may be limited by the lack of exemptions under the 
EU Directives and ESTMA and the possibility that other jurisdictions 
in the future will adopt similar initiatives as the global focus on 
reducing corruption associated with resource extraction activities 
continues.
---------------------------------------------------------------------------

    As discussed above, host country laws that prohibit the type of 
disclosure required under the final rules could lead to significant 
additional economic costs that are not captured by the compliance cost 
estimates in Section III.B.2.b. We believe that considering exemptive 
relief from the disclosure requirements on a case-by-case basis, as 
circumstances warrant, may substantially mitigate such costs. However, 
we acknowledge that, if this relief is not provided, issuers could 
potentially incur costs associated with the conflict between our 
requirements and those foreign law prohibitions. Below, we have 
attempted, to the extent possible, to assess the magnitude of the 
potential costs if such laws exist and if exemptive relief is not 
granted. Although we discuss the potential costs below for 
completeness, it is not clear that these costs, in fact, will be 
incurred by issuers in light of the present uncertainty regarding the 
existence and scope of such foreign laws and the fact that we intend to 
consider the use of our exemptive authority where investor interests 
would be jeopardized with little accompanying benefit from the specific 
disclosure.\669\ Accordingly, the magnitude of the potential costs 
outlined below should not be viewed as necessarily indicative of the 
likely or expected costs of this aspect of the final rules.
---------------------------------------------------------------------------

    \669\ No commenters provided us with data or analysis to assist 
in assessing the potential costs that could arise from foreign law 
prohibitions on disclosure. We note that we anticipate considering 
the specific potential costs that an issuer would experience if a 
foreign law prohibition exists when we consider the issuer's 
exemptive application, provided the issuer produces documentation to 
credibly support those potential costs.
---------------------------------------------------------------------------

    We base our analysis on the two countries that some commenters 
continue to assert have versions of such laws.\670\ We searched 
(through a text search in the EDGAR system) the Forms 10-K, 40-F, and 
20-F of affected issuers for calendar year 2015 for any mention of 
China or Qatar. We found that, out of 425 potentially affected issuers, 
150 mentioned one of these two countries. However, only 53 of them 
described any activity in one of these two countries and 97 mentioned 
these countries for other, unrelated reasons. An examination of these 
53 filings indicates that most filings did not provide detailed 
information on the extent of issuers' operations in these 
countries.\671\ Thus, we are unable to determine the total amount of 
capital that could be lost in these countries if the information 
required to be disclosed under the final rules is, in fact, prohibited 
by laws or regulations and exemptive relief is not provided.
---------------------------------------------------------------------------

    \670\ See notes 658, 659, and 660 at the beginning of this 
section.
    \671\ We note that some resource extraction issuers do not 
operate in these two countries and thus would not have any such 
information to disclose. Other issuers may have determined that they 
were not required to provide detailed information in their filings 
regarding their operations in these countries.
---------------------------------------------------------------------------

    We can, however, assess if the costs of withdrawing from these two 
countries are in line with some commenters' estimates of tens of 
billions of dollars provided on the Proposing Release.\672\ To do this, 
we first estimate the market value of assets that an issuer currently 
owns in a

[[Page 49414]]

country with such laws. We then discuss how the presence of various 
opportunities for the use of those assets by the issuer or another 
entity would affect the size of the issuer's potential losses. We also 
discuss how these losses would be affected if an issuer cannot redeploy 
the assets in question easily, or if it has to sell them at a steep 
discount (a fire sale). In order to estimate the market value of assets 
located in one of these countries, we use Compustat geographic segments 
data extracted from Exchange Act annual reports to find the fraction of 
book value of such assets in the issuer's total assets and assume that 
the market value of such assets is the same fraction of the issuer's 
total market value.\673\
---------------------------------------------------------------------------

    \672\ See letters from ExxonMobil 1, ExxonMobil 2, and RDS 4 
(pre-proposal). We note, however, that the Royal Dutch Shell 
estimate was submitted in response to the 2010 Proposing Release. In 
addition, Royal Dutch Shell is incorporated in the United Kingdom 
and listed on the London Stock Exchange and Euronext Amsterdam and 
thus is subject to substantially similar disclosure requirements 
under existing international transparency regimes.
    \673\ This approach assumes that valuation of assets of a firm 
is the same regardless of where these assets are geographically 
located. Not all of the assets located in these host countries might 
be related to resource extraction payments, which disclosure can 
trigger their sale or loss; however, we choose the conservative 
approach and err on the side of overestimating the losses.
---------------------------------------------------------------------------

    One commenter suggested that our valuation analysis is flawed 
because it is based on a book value metric instead of a market value 
metric.\674\ The commenter, however, erroneously states that we use 
book values to measure the value of an issuer's assets in these two 
countries. As stated above, we use book values only to determine what 
fraction an issuer's assets in China or Qatar are of that issuer's 
total assets. We then apply this fraction to an issuer's market value 
to determine the market value of such assets.
---------------------------------------------------------------------------

    \674\ See letter from API 1 (Attachment B).
---------------------------------------------------------------------------

    As we discuss above, we were able to identify a total of 53 issuers 
that indicated they are active in these countries (some operate in more 
than one country). The table below provides information from the 16 
issuers, out of the 53 described above, that provide geographic segment 
data at the country level and that specifically identify the value of 
assets in one of these two countries.\675\ We expect that the actions 
taken in response to any foreign law prohibition and the nature of 
costs that issuers might face would be different for issuers domiciled 
in the United States and in foreign jurisdictions; therefore, we 
consider these two types of filers separately.
---------------------------------------------------------------------------

    \675\ As noted above, we identified 53 issuers that discussed 
their activities in at least one of the two countries, but only 16 
of the issuers provided country-level geographic segment information 
for those countries that was specific enough to use in our analysis 
(some issuers may have determined that they were not required to 
provide detailed information in their filings and others might not 
have any assets in these countries). In the table, Country Assets 
are defined as either Long-lived Assets, Identifiable Total Assets, 
or Property, Plant & Equipment, whichever was disclosed; Country 
Assets Fraction in Total Assets is Country Assets/Total Assets; and 
Market Value Estimate of Country Assets is Country Assets Fraction 
in Total Assets * Company Market Value, where Company Market Value 
is calculated as Consolidated Company-Level Market Value of Common 
Equity + Total Debt + Preferred Stock Liquidating Value--Deferred 
Taxes and Investment Tax Credits if all these values were available. 
We were not able to identify the company-level market values for 
some issuers, and, thus, we were not able to determine their Market 
Value Estimate of Country Assets. All Compustat data is the latest 
annual data disclosed on or before the date of the issuer's 2015 
Form 10-K or 20-F filing.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Market value
                                                          Domicile                        Country assets   Total assets   Country assets    estimate of
            Issuer                   Form type            (business       Host country        ($ mil)         ($ mil)       fraction in   country assets
                                                          address)                                                         total assets       ($ mil)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1............................  10-K                   Foreign.........  China...........            23.4            23.4          100.0%             2.6
2............................  10-K                   Foreign.........  China...........           193.6           193.6          100.0%            86.4
3............................  10-K                   Foreign.........  China...........            22.1            22.1          100.0%             8.1
4............................  10-K                   Foreign.........  China...........             9.6             9.6          100.0%             7.2
5............................  20-F                   Foreign.........  China...........            12.9            12.9          100.0%            58.8
6............................  20-F                   Foreign.........  China...........         8,967.0        21,451.5           41.8%  ..............
7............................  20-F                   Foreign.........  China...........       280,177.4       387,691.9           72.3%  ..............
8............................  20-F                   Foreign.........  China...........        19,225.9        31,046.6           61.9%  ..............
9............................  10-K                   U.S.............  China...........           389.0        37,399.0            1.0%           288.5
10...........................  10-K                   U.S.............  China...........           311.0         3,075.0           10.1%           294.3
11...........................  10-K                   U.S.............  China...........           728.0         9,598.0            7.6%           389.3
12...........................  10-K                   U.S.............  China...........         1,913.0       116,539.0            1.6%         1,518.9
13...........................  10-K                   U.S.............  China...........             0.1             2.0            6.0%             1.7
14...........................  10-K                   U.S.............  China...........            13.3           829.4            1.6%            21.8
15...........................  10-K                   U.S.............  China...........            49.9         2,576.0            1.9%            33.7
16...........................  10-K                   U.S.............  Qatar...........         2,605.0        56,259.0            4.6%         3,053.3
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The magnitude of potential total loss of assets in the host 
countries is represented in the last column of the table, the estimated 
market value of country assets. For the eight issuers domiciled in the 
United States that have assets in one of these two host countries, the 
estimated total loss range is between $1.7 million and $3.1 billion, 
with a median loss of $291.4 million. The aggregate fraction of total 
assets that might be affected is 2.7%.\676\ We note that these 
estimates apply only to issuers that have assets in one of the host 
countries.
---------------------------------------------------------------------------

    \676\ Total assets of all U.S.-based firms located in these host 
countries divided by total worldwide assets of the same firms.
---------------------------------------------------------------------------

    As shown in the table above, eight issuers have a foreign address 
associated with their Form 10-K or 20-F filing. As we discussed above, 
issuers that are domiciled in foreign countries might face different 
types of costs than U.S.-based issuers. For example, they are more 
likely to decide it is necessary to delist from an exchange in the 
United States, deregister, and cease reporting with the Commission, 
thus incurring a higher cost of capital and potentially limited access 
to capital in the future, rather than to sell their assets abroad. Due 
to limited data availability, we cannot reliably quantify these costs.
    Even though our analysis was limited to less than half of issuers 
that are active in these two countries, these estimates suggest that 
commenters' concerns about such host country laws potentially imposing 
billions of dollars of costs on affected issuers could be warranted, if 
such prohibitions exist, are not waived by the host country, and no 
exemptive relief from our rules is provided. Additional costs at that 
scale could have a significant impact on resource extraction issuers' 
profitability and competitive position. The analysis above assumes that 
a total loss of assets located in the host countries would occur. In a 
similar vein, one commenter suggested that any action by an issuer to 
obtain an exemption would likely

[[Page 49415]]

represent a breach of the issuer's contractual obligation to the 
country and force the issuer potentially to suffer a total loss of its 
local operations.\677\ In a more likely scenario, however, these 
issuers would be forced to sell their assets in the above-mentioned 
host countries at fire sale prices. Additionally, an issuer could 
redeploy these assets to other projects that would generate cash flows.
---------------------------------------------------------------------------

    \677\ See letter from ExxonMobil 1.
---------------------------------------------------------------------------

    While we do not have data on fire sale prices for the industries of 
the affected issuers, economic studies on fire sales of real assets in 
other industries provide some estimates that may allow us to quantify 
the potential costs to affected issuers from having to sell assets at 
fire sale prices. For example, a study on the airline industry finds 
that planes sold by financially distressed airlines bring 10 to 20 
percent lower prices than those sold by undistressed airlines.\678\ 
Another study on aerospace plant closings finds that all groups of 
equipment sold for significant discounts relative to estimated 
replacement cost.\679\ The discounts on machine tools, instruments, and 
miscellaneous equipment were estimated to be between 63 and 69 percent. 
The analysis also suggests that the most specialized equipment appears 
to have suffered substantially higher discounts than the least 
specialized equipment, which may be relevant to the extractive industry 
to the extent that a project would not have many potential alternative 
suitors should it need to be disposed of due to a conflict between the 
final rules and host country laws. Other studies provide estimates of 
fire sale discounts for forced house sales (about 3-7 percent for 
forced sales due to death or bankruptcy and about 27 percent for 
foreclosures) \680\ and sales of stand-alone private firms and 
subsidiaries (15-30 percent relative to comparable public acquisition 
targets).\681\ These estimates suggest a possible range for the fire 
sale discount from 3 to 69 percent.
---------------------------------------------------------------------------

    \678\ See Todd Pulvino 1998. ``Do Fire-Sales Exist? An Empirical 
Study of Commercial Aircraft Transactions.'' Journal of Finance, 
53(3): 939-78.
    \679\ See Ramey, V.A., Shapiro, M.D. 2001. ``Displaced Capital: 
A Study of Aerospace Plant Closings.'' Journal of Political Economy, 
109: 958-92.
    \680\ See Campbell, John Y., Stefano Giglio, and Parag Pathak 
2011. ``Forced Sales and House Prices.'' American Economic Review, 
101: 2108-31.
    \681\ See Officer, M.S. 2007. ``The Price of Corporate 
Liquidity: Acquisition Discounts for Unlisted Targets.'' Journal of 
Financial Economics, 83: 571-98.
---------------------------------------------------------------------------

    Commenters did not provide any numerical estimates of the fire sale 
discounts that resource extraction issuers could potentially face. One 
commenter asserted that the range of fire sale discounts that the 
Commission presented in the Proposing Release was incorrect because it 
was based on industries that were very different from the resource 
extraction industry.\682\ According to the commenter, the appropriate 
fire sale discount should be 100 percent because of the significant 
sunk-cost investments in the resource extraction industry that the 
commenter asserted are relationship-specific and transaction-specific 
and thus have little to no value outside such relationships or 
transactions. While we agree with the commenter that our numerical 
examples are based on industries that are different from the resource 
extraction industry, as we acknowledged in the Proposing Release, we do 
provide an estimate of a 100 percent fire sale discount as well, as 
reflected in the total loss estimate from above. Additionally, our 
understanding is that, in most production sharing contracts, the 
exploration and production company receives reimbursement via the cost 
recovery mechanism during the period of the contract, and ownership of 
the field equipment reverts to the host country upon termination of the 
contract.\683\ Thus, even if the contract is terminated prematurely, an 
issuer may receive certain reimbursement for its sunk cost investments 
in the field equipment. Also, equipment installed in the field by one 
issuer can usually be reused by another issuer without removing it from 
the field. Given that the resource extraction industry is a competitive 
industry not only in the United States but also globally, it is likely 
that if an issuer has to dispose of its assets in one of these two 
countries there may be local or international buyers that that are not 
subject to the rule that find these assets valuable and are able to use 
them for the same purpose (e.g., to extract oil) and hence are willing 
to bid up their price, which will result in fire sale discounts of less 
than 100 percent.
---------------------------------------------------------------------------

    \682\ See letter from API 1 (Attachment B).
    \683\ See, e.g., Brady, John, Charles Chang, Dennis R. Jennings, 
and Rich Shappard. Petroleum Accounting--Principles, Procedures, & 
Issues. PDI, 7th Edition, 2011, Chapter 25.
---------------------------------------------------------------------------

    Despite the assertion by the same commenter that in the event of 
disclosure the issuers' assets are likely to be seized by locally-owned 
or government-owned enterprises, we believe such asset seizures may be 
unlikely given the negative effect on the country's reputation as a 
place to do business that they could generate as well as the fact that 
locally-owned or government-owned enterprises may not have the 
expertise and the technological know-how to efficiently manage these 
assets. Another commenter suggested that some resource extraction 
issuers sell whole or partial stakes in their ventures as a matter of 
course without violating a host country law or contractual 
provision.\684\ According to this commenter, a sale under such 
circumstances could lead to a fire sale discount, but it is highly 
unlikely to bring about a total loss. The commenter also stated that 
issuers would likely be protected under bilateral investment treaties 
or covered by political risk insurance that could lower the size of the 
loss. Another commenter also stated that resource extraction issuers 
may have public or private insurance, or treaty-based or commercial 
arbitration mechanisms, which would allow them to recover some or all 
of their losses in the case of government interference with their 
assets.\685\
---------------------------------------------------------------------------

    \684\ See letter from Oxfam 1.
    \685\ See letter from PWYP-US 1.
---------------------------------------------------------------------------

    To understand how relevant these discounts are to the resource 
extraction issuers affected by the final rules, we examine the ease 
with which real assets could be disposed of in different industries. If 
the forced disposal of real assets is more easily facilitated in the 
resource extraction industries compared to other industries (i.e., 
there is a more liquid market for those assets), then the lower range 
of the fire sale discounts will be more appropriate to estimate 
potential losses due to the foreign law prohibitions. We measure the 
ease with which issuers in a given industry could sell their assets by 
a liquidity index.\686\ The index is defined as the ratio of the value 
of corporate control transactions \687\ in a given year to the total 
book value of assets of firms in the industry for that year. We believe 
that this ratio captures the general liquidity of assets in an industry 
because it measures the volume of the type of transactions that 
companies rely on when divesting real assets. Additionally, one 
economic study finds

[[Page 49416]]

that the liquidity of the market for corporate assets, as measured by 
the liquidity index, plays an important role in explaining assets 
disposals by companies.\688\
---------------------------------------------------------------------------

    \686\ See Frederic Schlingemann, Rene Stulz, and Ralph Walkling 
2002. ``Divestitures and the Liquidity of the Market for Corporate 
Assets.'' Journal of Financial Economics, 64: 117-144. The index 
value is between 0 and 1. A higher value of the index for an 
industry indicates that this is an industry with a more liquid 
market for corporate assets and a firm in that industry would be 
able to sell its real assets easier and at smaller loss than a firm 
in an industry with a lower liquidity index.
    \687\ As corporate control transactions, we consider all 
completed or pending leveraged buyouts, tender offers, spinoffs, 
exchange offers, minority stake purchases, acquisitions of remaining 
interest, privatizations, and equity carve-outs of U.S. targets. We 
exclude buybacks (e.g., repurchases and self-tenders) from the 
sample. Data on these transactions comes from Thomson Financial's 
Mergers & Acquisitions and New Issues databases. Data on the book 
value of total assets is taken from Compustat.
    \688\ See Frederic Schlingemann, Rene Stulz, and Ralph Walkling 
2002. ``Divestitures and the Liquidity of the Market for Corporate 
Assets.'' Journal of Financial Economics, 64: 117-144.
---------------------------------------------------------------------------

    We note, however, that the index, as constructed, will also reflect 
the industry's typical financial leverage, not just the liquidity of 
its assets. To the extent that different industries have different 
leverages, these differences in leverage could explain some of the 
cross-industry variation of the index. Additionally, the index measures 
the ease with which ownership of assets is changed over the time period 
under consideration. Hence, the index is expected to adjust to 
intertemporal changes in the ease with which assets in a certain 
industry can be disposed of, which is important because it is well-
established that control transactions tend to be cyclical in 
nature.\689\
---------------------------------------------------------------------------

    \689\ Gregor Andrade, and Erik Stafford, 2004. ``Investigating 
the economic role of mergers.'' Journal of Corporate Finance 10: 1-
36.
---------------------------------------------------------------------------

    We construct the index for all industries, identified by three-
digit SIC codes. For each industry, after estimating the value of the 
index in each year during the period 2010-2014, we calculate the 
average over the five-year period. Several industries have a liquidity 
index greater than 1; in those cases we cap the index level at 1.
    The table below presents summary statistics for the liquidity index 
for all industries and the resource extraction industries during the 
period 2010-2014.

------------------------------------------------------------------------
                                                          Index value
------------------------------------------------------------------------
All other industries:
  Mean...............................................               0.11
  Median.............................................               0.03
  Top quartile.......................................               0.09
  Bottom quartile....................................               0.01
Industries with similar financial leverage:
  Mean...............................................               0.08
  Median.............................................               0.02
  Top quartile.......................................               0.10
  Bottom quartile....................................               0.01
Resource extraction issuers:
  Mean...............................................               0.02
  Median.............................................               0.01
------------------------------------------------------------------------

    The results in the table show that the liquidity of real assets in 
the resource extraction industries is low (an average liquidity index 
of 0.02) compared with the liquidity in other industries (an average 
liquidity index of 0.11). That is, it is harder to dispose of assets in 
the extractive industries relative to other industries. In fact, the 
liquidity index of resource extraction industries is in the lowest 
quartile of the distribution of the index for all industries. As 
mentioned above, this could reflect the fact that resource extraction 
issuers have higher financial leverage than other industries. All other 
things being equal, higher financial leverage will result in a lower 
liquidity index. To control for the effects of financial leverage, we 
compare the liquidity index of resource extraction industries to that 
of industries with similar leverage.\690\ As the results of this 
comparison show, resource extraction industries have lower liquidity 
index values even when compared to industries with similar levels of 
financial leverage: A median of 0.01 for the resource extraction 
industries compared to a median of 0.02 for industries with similar 
financial leverage.\691\ This suggests that affected issuers may still 
experience difficulty in disposing of some of their real assets 
relative to other industries with similar leverage levels when a need 
arises. It should be noted, however, that the liquidity index estimates 
the liquidity of the real assets at the industry level, not at the 
level of a country with laws prohibiting disclosure. It is possible 
that in some of these countries the ability of an affected issuer to 
dispose of assets could be more or less constrained than that at the 
industry level.
---------------------------------------------------------------------------

    \690\ We first estimate the median market leverage of the 
resource extraction industries during the period 2010-2014. Market 
leverage is defined as the ratio Total debt/(Total debt + Market 
value of equity). We then classify as similar those industries whose 
median market leverage is within -/+ 10% of the median market 
leverage of the resource industries for the same time period. There 
are six industries that are similar to the resource extraction 
industries based on this criterion. Data on total debt and market 
value of equity comes from Compustat.
    \691\ We note that many factors may drive the choice of leverage 
within a given industry, and some of these factors may also affect 
the industry's liquidity index. Thus, the industries that have 
leverage that is similar to that of the resource extraction 
industries may be very different in some other aspects (e.g., growth 
opportunities or intensity of competition) and that could explain 
the differences in their liquidity indices and the liquidity index 
of the resource extraction industries.
---------------------------------------------------------------------------

    One commenter criticized our use of the liquidity index based on 
the argument that it is constructed using U.S. data, with the U.S. 
being one of the most liquid markets in the world.\692\ Our purpose, 
however, in using the index is to do a relative comparison: that is, to 
get a sense of whether the resource extraction industry is more or less 
liquid than other industries. We do not use the liquidity index to 
develop an absolute measure of liquidity in the resource extraction 
industry. Furthermore, our results from the analysis using the 
liquidity index are in line with the commenter's suggestions that this 
industry is relatively illiquid compared to other industries.
---------------------------------------------------------------------------

    \692\ See letter from API 1 (Attachment B).
---------------------------------------------------------------------------

    Because we lack data to construct the liquidity index at the 
country level, we cannot quantify the liquidity of the single-country 
market for real assets. The table below lists the number of corporate 
control transactions in each of the two countries under consideration 
from the period 2010-2014, broken down by type of industry.\693\ As 
seen from the table, China is by far the more active market for 
corporate control transactions among the two countries. Although the 
number of relevant transactions gives some indication of how liquid the 
market in each country is, without knowing the size of the discounts 
and the types of companies involved in these deals (e.g., small or 
large), we cannot conclusively say in which country the cost associated 
with fire sale prices would be lower. These costs would likely depend 
on country-level factors such as a country's regulatory framework 
governing such transactions (e.g., how quickly a transaction can get 
approved), the degree of competition in the resource extraction 
industry, availability of capital (e.g., availability and cost of debt 
and stock market valuations), and changes in currency exchange rates. 
For example, a recent study documents that companies from countries 
whose stock market has increased in value and whose currency has 
recently appreciated are more likely to be purchasers of corporate 
assets.\694\ In a certain country, a more competitive resource 
extraction industry is likely to be associated with lower fire sale 
discounts.
---------------------------------------------------------------------------

    \693\ Corporate control transactions are defined as in footnote 
687. Data on the transactions comes from Thomson Financial's Mergers 
& Acquisitions.
    \694\ See Isil Erel, Rose Liao, and Michael Weisbach 2012. 
``Determinants of Cross-Border Mergers and Acquisitions,'' Journal 
of Finance 67: 1045-82.

------------------------------------------------------------------------
                                                             Number of
                                                           transactions
                         Country                             (% of all
                                                           transactions)
------------------------------------------------------------------------
China:
  Resource extraction industries........................         885 (6)
  All other industries..................................     14,304 (94)
Qatar:
  Resource extraction industries........................           5 (8)
  All other industries..................................         54 (92)
------------------------------------------------------------------------

    Given the lower liquidity of the market for the real assets of 
resource extraction issuers, we believe that the upper limit of the 
fire sale discount range would be more appropriate when

[[Page 49417]]

estimating the fire sale prices at which affected issuers could dispose 
of their assets in countries with laws prohibiting disclosure, should 
such need arise. If we apply those discount percentages to the market 
value of the issuers' assets in these host countries, this would reduce 
our estimates of their potential losses. For U.S.-based issuers, if we 
apply the highest discount of 69 percent, the range of losses would be 
between $1.2 million and $2.1 billion, with a median loss of $201.1 
million. If the true fire sale discounts in the countries with 
disclosure prohibition laws are lower than our highest estimate, the 
losses of affected issuers would be lower. In addition to the dollar 
costs, the process of disposing of assets could involve substantial 
time, which could further increase the total cost of the restructuring. 
We acknowledge, however, that the fire sale discount estimates are 
based on data from other industries that are very different from the 
industries of affected issuers. Thus, our estimates may not accurately 
reflect the true fire sale discounts that affected issuers could face.
    Alternatively, an issuer could redeploy these assets to other 
projects that would generate cash flows. If an issuer could redeploy 
these assets relatively quickly and without a significant cost to 
projects that generate similar rates of returns as those in the above-
mentioned countries, then the issuer's loss from the presence of such 
host country laws would be minimal. The more difficult and costly it is 
for an issuer to do so, and the more difficult it is to find other 
projects with similar rates of return, the larger the issuer's losses 
would be. However, we do not have sufficient data to quantify more 
precisely the potential losses of issuers under those various 
circumstances. Likewise, if there are multiple potential buyers (e.g., 
companies not subject to the final rules, the EU Directives, or ESTMA), 
and if the issuer could sell those assets to one such buyer, then the 
buyer might pay the fair market value for those assets, resulting in 
minimal to no loss for the issuer.
    Overall, the results of our analysis are consistent with 
commenters' assertions that the presence of host country laws that 
prohibit the type of disclosure required under the final rules could be 
costly, although, as mentioned in the preceding paragraph, in some 
instances there may be mitigating factors that could decrease those 
costs. It is also possible that under certain circumstances affected 
issuers could lose 100 percent of their assets in a given country. The 
size of the potential loss to issuers would depend on the presence of 
other similar opportunities, third parties willing to buy the assets at 
fair-market values in the above-mentioned host countries, and the 
ability of issuers to avoid fire sales of these assets. Finally, as 
discussed at the beginning of this section, it is not clear that these 
costs, in fact, will be incurred by issuers in light of the present 
uncertainty over the existence and scope of such foreign law 
prohibitions and our intent to consider exemptive relief on a case-by-
case basis.
2. Alternative Reporting
    The final rules allow resource extraction issuers subject to a 
foreign jurisdiction's resource extraction payment disclosure 
requirements that we have determined are substantially similar to our 
own requirements to satisfy their submitting obligations by filing the 
report required by that foreign jurisdiction with the Commission. At 
the same time, we are recognizing the EU Directives, ESTMA, and the 
USEITI as ``substantially similar'' reporting regimes for purposes of 
this alternative reporting provision. This approach will significantly 
decrease compliance costs for issuers that are cross-listed or 
incorporated in these foreign jurisdictions. We estimated above that 
approximately 192 issuers will be subject to other regulatory regimes 
that may allow them to utilize this provision.\695\ For these issuers, 
the costs associated with preparing and filing a Form SD should be 
negligible, although they will be required to format the data in 
interactive (XBRL) format before filing it with the Commission.
---------------------------------------------------------------------------

    \695\ These are issuers that have a business address, are 
incorporated, or are listed on exchanges in the EEA or Canada and 
that have to provide substantially similar disclosure to the 
European Union or Canadian authorities.
---------------------------------------------------------------------------

    As an alternative, we could have decided not to adopt such a 
provision. Such an alternative would have increased the compliance 
costs for issuers that are subject to substantially similar foreign 
disclosure requirements. These issuers would have to comply with 
multiple disclosure regimes and bear compliance costs for each regime, 
although it is possible that the marginal costs for complying with an 
additional disclosure regime would not be high given the potential 
similarities that may exist between these reporting regimes and the 
final rules.
3. Definition of Control
    Section 13(q) requires resource extraction issuers to disclose 
payments made by a subsidiary or entity under the control of the 
issuer. As discussed in Section II.D above, we are adopting rules that 
define the term ``control'' based on accounting principles. 
Alternatively, we could have used a definition based on Exchange Act 
Rule 12b-2 as in the 2012 Rules.\696\ We believe that the approach we 
are adopting will be less costly for issuers to comply with because 
issuers are currently required to apply the definition on at least an 
annual basis for financial reporting purposes. While some commenters 
were concerned about the ability of an issuer to obtain sufficiently 
detailed payment information from proportionately consolidated entities 
or operations when it is not the operator of that venture, we note that 
the issuer would be able to rely on Exchange Act Rule 12b-21 to omit 
the information if, under existing contracts, the necessary payment 
information is unknown and not reasonably available.\697\
---------------------------------------------------------------------------

    \696\ See Section II.D of the Proposing Release.
    \697\ See letters from API 1; BP; Chevron; Encana; ExxonMobil 1; 
Petrobras; and RDS.
---------------------------------------------------------------------------

    Using a definition based on Rule 12b-2 would require issuers to 
undertake additional steps beyond those currently required for 
financial reporting purposes.\698\ Specifically, a resource extraction 
issuer would be required to make a factual determination as to whether 
it has control of an entity based on a consideration of all relevant 
facts and circumstances. Thus, this alternative would have required 
issuers to engage in a separate analysis of which entities are included 
within the scope of the required disclosures (apart from the 
consolidation determinations made for financial reporting purposes) and 
could have increased the compliance costs for issuers compared to the 
approach we are adopting.
---------------------------------------------------------------------------

    \698\ Id.
---------------------------------------------------------------------------

    In addition, there are several other benefits from using a 
definition based on accounting principles. There will be audited 
financial statement disclosure of an issuer's significant consolidation 
accounting policies in the footnotes to its audited financial 
statements contained in its Exchange Act annual reports, and an 
issuer's determination of control under the final rules will be subject 
to the audit process as well as subject to the internal accounting 
controls that issuers are required to have in place with respect to 
audited financial statements filed with the Commission.\699\ All of 
these benefits may lead to more accurate, reliable, and consistent 
reporting of subsidiary payments, thereby enhancing the quality of the 
reported data.
---------------------------------------------------------------------------

    \699\ See Section II.D above.

---------------------------------------------------------------------------

[[Page 49418]]

4. Definition of ``Commercial Development of Oil, Natural Gas, or 
Minerals''
    As in the Proposing Release, the final rules define ``commercial 
development of oil, natural gas, or minerals'' to include exploration, 
extraction, processing, and export, or the acquisition of a license for 
any such activity. As described above, the rules that we are adopting 
generally track the language in the statute. We are sensitive to the 
fact that a broader definition of ``commercial development of oil, 
natural gas, or minerals'' could increase issuers' costs. We are also 
sensitive to the fact that expanding the definition in a way that is 
broader than other reporting regimes could potentially lead to a 
competitive disadvantage for those issuers covered only by our rules. 
Further, we recognize that limiting the definition to these specified 
activities could adversely affect those using the payment information 
if disclosure about payments made for activities not included in the 
list of specified activities, such as refining, smelting, marketing, or 
stand-alone transportation services (i.e., transportation that is not 
otherwise related to export), would be useful to users of the 
information.
    As noted above, the final rules include an anti-evasion provision 
that requires disclosure with respect to an activity or payment that, 
although not in form or characterization one of the categories 
specified under the final rules, is part of a plan or scheme to evade 
the disclosure required under Section 13(q).\700\ We recognize that 
adding this requirement may increase the compliance costs for some 
issuers; however, we believe this provision is appropriate in order to 
minimize evasion and improve the effectiveness of the disclosure.
---------------------------------------------------------------------------

    \700\ See proposed Rule 13q-1(b).
---------------------------------------------------------------------------

5. Types of Payments
    As in the Proposing Release, the final rules add two categories of 
payments to the list of payment types identified in the statute that 
must be disclosed: Dividends and payments for infrastructure 
improvements. We include these payment types in the final rules 
because, based on the comments we have received, we believe they are 
part of the commonly recognized revenue stream. For example, payments 
for infrastructure improvements have been required under the EITI since 
2011. Additionally, we note that the EU Directives and ESTMA also 
require these payment types to be disclosed. Thus, including dividends 
and payments for infrastructure improvements (e.g., building a road) in 
the list of payment types required to be disclosed under the final 
rules will promote consistency with the EU Directives and ESTMA and 
should improve the effectiveness of the disclosure, thereby furthering 
international transparency promotion efforts.
    In a change from the Proposing Release, we are adding CSR payments 
that are required by law or contract to the list of covered payment 
types. Some commenters argued that these payments are of material 
benefit in resource-dependent countries to both governments and local 
communities.\701\ One commenter suggested that some resource extraction 
issuers already disclose such payments voluntarily and presented survey 
data indicating that such payments could be quite large.\702\ Thus, the 
addition of CSR payments to the list of types of payments that must be 
disclosed should improve the quality of the disclosure required by the 
statute. Additionally, to the extent that it is difficult for certain 
resource extracting issuers to distinguish between CSR payments and 
infrastructure payments, requiring both types of payments when required 
by contract with the host government may lead to lower compliance costs 
for those issuers.\703\
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    \701\ See letters from ACEP; Broadman & Searby; ExxonMobil 1; 
Falik; Global Witness 1; Oxfam 1; PWYP-US 1; and USAID.
    \702\ See letter from PWYP-US 1.
    \703\ See letter from ExxonMobil 1.
---------------------------------------------------------------------------

    As discussed earlier, under the final rules resource extraction 
issuers would incur costs to provide the payment disclosure for the 
required payment types. For example, there will be costs to modify the 
issuers' core enterprise resource planning systems and financial 
reporting systems so that they can capture and report payment data at 
the project level, for each type of payment, government payee, and 
currency of payment.\704\ Since some of the payments are required to be 
disclosed only if they are required by law or contract (e.g., CSR 
payments), resource extraction issuers would presumably track such 
payments and hence the costs of disclosing these payments may not be 
large. Nevertheless, the addition of dividends, payments for 
infrastructure improvements, and CSR payments to the list of payment 
types for which disclosure is required may marginally increase some 
issuers' costs of complying with the final rules. For example, issuers 
may need to add these types of payments to their tracking and reporting 
systems. We understand that these types of payments are more typical 
for mineral extraction issuers than for oil issuers,\705\ and therefore 
only a subset of the issuers subject to the final rules might be 
affected.
---------------------------------------------------------------------------

    \704\ See note 588 and accompanying text.
    \705\ See, e.g., letters from PWYP-US 1 and Global Witness 1. 
See also Chapter 19 ``Advancing the EITI in the Mining Sector: 
Implementation Issues'' by Sefton Darby and Kristian Lempa, in 
Advancing the EITI in the Mining Sector: A Consultation with 
Stakeholders (EITI 2009).
---------------------------------------------------------------------------

    Under the final rules, issuers may disclose payments that are made 
for obligations levied at the entity level, such as corporate income 
taxes, at the entity level rather than the project level. This 
accommodation also should help reduce compliance costs for issuers 
without significantly interfering with the goal of achieving increased 
payment transparency.
    Under the final rules, issuers must disclose payments made in-kind. 
The EU Directives and ESTMA also require disclosure of in-kind 
payments, as does the EITI. Consequently, this requirement should help 
further the goal of supporting international transparency promotion 
efforts and enhance the effectiveness of the payment disclosure. At the 
same time, this requirement could impose costs if issuers have not 
previously had to value their in-kind payments. To minimize the 
potential additional costs, the final rules provide issuers with the 
flexibility of reporting in-kind payments at cost, or if cost is not 
determinable, at fair market value. We believe this approach should 
lower the overall compliance costs associated with our decision to 
include the disclosure of in-kind payments.
6. Definition of ``Not De Minimis''
    Section 13(q) requires the disclosure of payments that are ``not de 
minimis,'' leaving that term undefined. Consistent with the proposed 
rules, the final rules define ``not de minimis'' to mean any payment, 
whether made as a single payment or a series of related payments, that 
equals or exceeds $100,000, or its equivalent in the issuer's reporting 
currency.
    We considered adopting a definition of ``not de minimis'' that was 
based on a qualitative principle or a relative quantitative measure 
rather than an absolute quantitative standard. We chose the absolute 
quantitative approach for several reasons. An absolute quantitative 
approach should promote consistency of disclosure and, in addition, 
would be easier for issuers to apply than a definition based on either 
a qualitative principle or relative quantitative measure. Moreover, 
using an absolute dollar amount threshold for

[[Page 49419]]

disclosure purposes should reduce compliance costs by reducing the work 
necessary to determine what payments must be disclosed.
    In choosing the $100,000 ``de minimis'' threshold, we selected an 
amount that we believe strikes an appropriate balance in light of 
varied commenters' concerns and the purpose of the statute. Although 
commenters on the 2010 Proposing Release suggested various thresholds, 
no commenter provided data to assist us in determining an appropriate 
threshold amount.\706\ In addition, one commenter on the Proposing 
Release criticized the proposed $100,000 threshold as too low, although 
the commenter did not suggest an alternative amount or provide data to 
support why the threshold was too low.\707\ Our proposed threshold is 
very similar to the payment thresholds of other resource extraction 
disclosure regimes.\708\ For issuers (or their subsidiaries) that are 
already providing payment information under those resource extraction 
disclosure regimes, our definition of ``not de minimis'' will likely 
decrease compliance costs (compared to other threshold choices) 
associated with determining which payments should be reported because 
these issuers will already have systems tailored to this threshold. We 
considered other absolute amounts but chose $100,000 as the 
quantitative threshold in the definition of ``not de minimis.'' We 
decided not to adopt a lower threshold because we are concerned that 
such an amount could result in undue compliance burdens and raise 
competitive concerns for many issuers. We also considered defining 
``not de minimis'' either in terms of a materiality standard or by 
using a larger number, such as $1,000,000. Both of these alternatives 
might have resulted in lower compliance costs and might have lessened 
competitive concerns. In determining not to adopt these thresholds, 
however, we were mindful that they could leave important payment 
streams undisclosed, reducing the potential benefits to be derived from 
the final rules. In short, we believe the $100,000 threshold strikes an 
appropriate balance between concerns about the potential compliance 
burdens of a lower threshold and the need to fulfill the statutory 
directive for resource extraction issuers to disclose payments that are 
``not de minimis.''
---------------------------------------------------------------------------

    \706\ See 2012 Adopting Release, n.235 and n.243 and 
accompanying text.
    \707\ See letter from Nouveau.
    \708\ See discussion in Section II.C.2 of the Proposing Release.
---------------------------------------------------------------------------

7. Definition of ``Project''
    Section 13(q) requires a resource extraction issuer to disclose 
information about the type and total amount of payments made to a 
foreign government or the Federal Government for each project relating 
to the commercial development of oil, natural gas, or minerals, but it 
does not define the term ``project.'' The final rules define 
``project'' as operational activities governed by a single contract 
license, lease, concession, or similar legal agreement, which forms the 
basis for payment liabilities with a government. This definition is 
based on the definition in the EU Directives and the ESTMA 
Specifications, but allows for greater flexibility when operational 
activities governed by multiple legal agreements may be deemed a 
project.
    The definition of ``project'' that we are adopting should have the 
benefit of providing a granular transparency that citizens, civil 
society groups, and others can use to assess revenue flows from 
projects in their local communities. As we discuss above in Section 
II.E, this should have a number of potential benefits for information 
users seeking to prevent corruption and promote accountability. The 
definition of project may also reduce costs for issuers that are 
subject to both the final rules and either the EU Directives or ESTMA 
by not requiring different disaggregation of project-related costs due 
to different definitions of the term. It also likely will reduce the 
competitive disadvantage for issuers that could be required to make 
more granular disclosure of information than their competitors under a 
narrower definition. The definition also will provide more flexibility 
in, and reduce the burdens associated with, disaggregating payments 
made for activities that relate to multiple agreements that are both 
operationally and geographically interconnected.
    The definition may, however, increase the compliance costs for 
issuers that will be required to implement systems to track payments at 
a different level of granularity than what they currently track. In a 
similar vein, it may increase the risk of sensitive contract 
information being released, thus increasing the likelihood of 
competitive harm for some affected issuers. At the same time, this risk 
could be mitigated by the ability of issuers to treat operationally and 
geographically interconnected agreements as a single ``project'' 
notwithstanding that they do not have substantially similar terms.
    Several commenters on the Proposing Release suggested that the 
contract-based definition of ``project'' would result in the loss of 
trade secrets and intellectual property more generally.\709\ One 
commenter stated that trade secrets and intellectual property were 
especially valuable in the resource extraction industry because of its 
large sunk costs investments and uncertain, long-term payoffs. 
According to this commenter, the project-level disclosures required by 
the rule would amount to loss of trade secrets.\710\ The commenter did 
not, however, explain how the project-level disclosure of certain 
payments to foreign governments would result in the revelation of trade 
secrets and intellectual property.
---------------------------------------------------------------------------

    \709\ See letters from API 1 and ExxonMobil 1.
    \710\ See letter from API 1.
---------------------------------------------------------------------------

    Commenters on the Proposing Release also asserted that the 
definition of ``project'' would reveal sensitive and proprietary 
commercial information to competitors, thus resulting in competitive 
harm for resource extraction issuers.\711\ In considering the potential 
competitive consequences that may result from a contract-based 
definition of project, we think it is useful to break the analysis into 
three phases--the exploratory phase, the actual discovery, the 
development and early production period, and the mature stage of 
production.\712\
---------------------------------------------------------------------------

    \711\ See letters from API 1 and ExxonMobil 1.
    \712\ See generally OPEN OIL, OIL CONTRACTS: HOW TO READ AND 
UNDERSTAND THEM, at 15, available at http://openoil.net/?wpdmact=process&did=NS5ob3RsaW5r) (describing the ``key stages of a 
[petroleum] project's life'' as exploration, development, 
production, and decommission).
---------------------------------------------------------------------------

    According to industry commenters, the contract-based definition of 
``project'' would allow competitors to derive important information 
about the new areas under exploration for potential resource 
development, the value the company places on such resources, and the 
costs associated with acquiring the right to develop these new 
resources. This would in turn enable competitors to evaluate the new 
resources more precisely, and as a result, structure their bids for 
additional opportunities in the areas with new resources more 
effectively. We are mindful of these concerns and believe that the 
targeted exemption for payments related to exploratory activities 
included in the final rules, which permits registrants to delay the 
disclosure of these payments for an additional year, should help to 
mitigate these potential competitive harms. In this regard, we view the 
disclosure of payment information from the exploratory period as 
perhaps the most likely to reveal competitively sensitive information 
regarding a company's activities and expectations about the

[[Page 49420]]

location of resources. Further, because many larger scale resource 
extraction issuers are engaged in a continuous and competitive quest to 
locate new finds, we think a targeted exemption is appropriate to 
preserve their respective competitive advantages.
    We do not think the same potential for competitive harm exists 
after a resource find occurs. To the extent that exploratory activities 
lead to a new discovery, we note that industry commenters have not 
explained why a contract-based definition of ``project'' will lead to 
the public disclosure of more information about new areas of 
development and their value than would otherwise be publicly disclosed 
by analysts, industry consultants, media, and the issuers themselves. 
In this regard, we note that issuers have an incentive to disclose new 
developments and their value because this can often have a positive 
effect on their stock price. Additionally, the issuer's presence in a 
new area, irrespective of any other disclosure, will often provide 
information to its competitors that the area may have favorable 
prospects. Thus, regardless of any disclosures made pursuant to these 
rules, it is likely that an issuer's new resource discovery would 
eventually be disclosed by any of several methods, which should attract 
potential competitors and over time erode the first mover's advantage.
    To the extent that the contract-based definition of ``project'' 
provides detailed information on the costs of newer projects, it could 
be advantageous to potential competitors at the expense of the affected 
issuer. We note, however, that the payments required by the final rules 
will be only part of the costs of a new project. Unless competitors are 
able to observe the total costs of a new project, which we are 
skeptical they could do based just on the required disclosures, they 
may be unlikely to gain important competitive advantages. Additionally, 
a commenter's contention that requiring payment disclosure from an 
issuer in one country will help another country demand more from that 
same issuer and thus affect the issuer's competitive position does not 
take into account the fact that differences in geology, risk factors, 
and various other project characteristics will likely complicate such a 
strategy.\713\
---------------------------------------------------------------------------

    \713\ See letter from API 1. We also note that the contracting 
environment varies from country to country and therefore variables 
beyond the specific contractual provisions relating to revenue for 
the government may govern an issuer's strategic ability to obtain a 
license or concession. See generally, Ken Silverstein, The Secret 
World of Oil 14-54, 145-166 (2014) (describing the role that 
intermediaries and personal contacts can play in obtaining resource 
extraction contracts in many foreign countries, particularly those 
countries that lack fully democratic regimes).
---------------------------------------------------------------------------

    With respect to those projects that are older or more established, 
we think it is particularly unlikely that our contract-based definition 
of ``project'' will result in the public disclosure of competitively 
sensitive information. According to the API, the general terms of older 
projects are typically already available irrespective of whether the 
contracts have technically been made public.\714\ Thus, for resource 
extraction issuers that have a larger fraction of older or more well-
established projects in their portfolio, the competitive harm described 
by the commenters is likely to be insignificant. Additionally, given 
that resource extraction projects are generally long-term projects, it 
is likely that at any point in time older projects will be prevalent in 
an issuer's portfolio, which again suggests that potential competitive 
harm from the payment disclosures required by the final rules may not 
be significant.
---------------------------------------------------------------------------

    \714\ See id.
---------------------------------------------------------------------------

    Commenters also stated that the contract-based definition of 
``project'' would allow competitors to reverse-engineer proprietary 
commercial information: For example, to determine the commercial and 
fiscal terms of the agreements, get a better understanding of an 
issuer's strategic approach to bidding and contracting, and identify 
rate of return criteria.\715\ Since Section 13(q), like the EU 
Directives and ESTMA, requires all reporting issuers to disclose such 
payment information, the playing field among U.S. issuers and resource 
extraction companies subject to the European and Canadian disclosure 
regimes should be level since any reporting company could benefit from 
disclosures of all its reporting competitors.
---------------------------------------------------------------------------

    \715\ See letters from API 1 and ExxonMobil 1.
---------------------------------------------------------------------------

    We note that several commenters on the Proposing Release disputed 
the assertion that the contract-based definition of ``project'' would 
create any competitive disadvantages to affected issuers.\716\ One 
commenter argued that a significant number (84) of the world's largest 
100 oil and gas companies and a large number (58) of the world's 
largest mining companies would be required to disclose their payments 
under U.S., EU, Canadian, and Norwegian rules, or are doing so 
voluntarily already, thus diminishing the potential anti-competitive 
effects of the contract-based definition of ``project.'' \717\ We note, 
however, that the pool of largest oil companies that the commenter was 
referring to was determined based on market capitalization, which is 
unavailable for national oil companies and private oil and gas 
companies. If national and other private oil and gas companies were 
included in this pool, then the percentage of the largest companies 
required to disclose their payments under U.S., EU, Canadian, and 
Norwegian rules could be much smaller.
---------------------------------------------------------------------------

    \716\ See letters from PWYP-US 1 and Oxfam 1.
    \717\ See letter from PWYP-US 1.
---------------------------------------------------------------------------

    Relatedly, we acknowledge the potential that our definition of 
``project'' could provide competitive advantages to state-owned oil 
companies, which are not covered by the final rules. We note that such 
companies could enjoy an advantage to the extent that they do business 
in countries other than their own. In this regard, however, it is 
important to clarify that state-owned oil and gas companies across the 
globe ``differ on a number of very important variables, including the 
level of competition in the market in which they operate'' and ``their 
degree of commercial orientation and internationalization.'' \718\ 
Moreover, the extent to which state-owned companies compete in the 
market place against issuers covered by our rules varies. We understand 
that many state-owned companies operate primarily as gate-keepers for 
their home countries resource reserves, contracting with non-state-
owned companies, such as the large publicly traded U.S. oil and gas 
companies, to extract the country's natural resources.\719\ Other 
state-owned companies are primarily engaged in directly undertaking the 
extractive activities themselves for their home country.\720\ To the 
extent a state-owned oil or gas company is operating exclusively or 
predominantly in either of these two capacities, we anticipate that the 
issuers covered by our rules would not experience a substantial 
competitive disadvantage (from these state-owned companies) as a result 
of project-level payment disclosure. Nevertheless, we acknowledge that 
some state-owned companies are responsible for competing in the global 
marketplace to extract oil and gas abroad for import back to their home 
country (an activity their home country may have them undertake either 
to ensure a secure supply of natural resources or to balance the power 
of exporting countries and large non-state-owned oil companies).\721\ 
To the extent

[[Page 49421]]

any state-owned company acts in this way, it could compete with issuers 
covered by our rule and might potentially obtain some competitive 
advantage from the disclosure of sensitive commercial information.\722\ 
That said, we note that any potential competitive harm to U.S. issuers 
from the final rules could be limited by the fact that, as one 
commenter observed, national oil companies may already have access to 
similar commercial information from the numerous business intelligence 
services that provide real time, contract-level and lease-level 
information.\723\
---------------------------------------------------------------------------

    \718\ See World Bank, Working Paper No. 218: National Oil 
Companies and Value Creation (2011), available at http://siteresources.worldbank.org/INTOGMC/Resources/9780821388310.pdf, at 
xii.
    \719\ Id. at xi.
    \720\ Id.
    \721\ Id. at 23.
    \722\ We note that some import-based state-owned companies that 
potentially compete globally with U.S. issuers for extraction 
resources may be subject to our rules (or the EU Directives or 
ESTMA) to some extent and, thus, will be required to disclose 
information that could potentially be used by competitors. See, 
e.g., Zhang Tao & Wang Xiaocong, China Big Oil Firms on Edge Over 
U.S. Disclosure, Market Watch (April 22, 2012), available at http://www.marketwatch.com/story/china-big-oil-firms-on-edge-over-us-disclosure-2012-04-22 (explaining that ``China's state-owned, Big 
Three oil concerns''--China National Petroleum Corp. (CNPC), China 
Petroleum & Chemical Corp. (Sinopec) SNP, and China National 
Offshore Oil Corp. (CNOOC)--have subsidiaries that ``are listed on 
the New York Stock Exchange'' and thus may be required to release 
some revenue resource extraction payment information under Section 
13(q)). See also, id. (explaining that the U.S.-listed CNOOC 
subsidiary engages in ``oversees exploration and development 
projects in China and the rest of the world'' and that ``Sinopec's 
listed company described overseas projects in its 2010 annual report 
in Canada, Kazakhstan, Brazil and Angola'').
    \723\ See letter from Oxfam-ERI.
---------------------------------------------------------------------------

    One commenter also suggested that foreign issuers may decide to 
delist from U.S. exchanges because of the competitive advantage they 
would gain over reporting issuers.\724\ We are skeptical as to whether 
the gains from the potential cost savings and competitive advantages 
that could result from delisting from U.S. exchanges will be large 
enough to offset the likely large costs associated with it: Higher cost 
of capital, limited access to financing, and lower liquidity. Given 
that most of the major capital markets (e.g., United States, Europe, 
and Canada) require substantially similar disclosures, it is not 
obvious to what comparable listing venues issuers could migrate. 
Another option for issuers will be to delist and become private 
companies, but this would only magnify the costs of delisting described 
above and, thus, we think is an unlikely outcome.\725\
---------------------------------------------------------------------------

    \724\ See letter from API 1.
    \725\ The commenter also argued that the potential delisting may 
actually decrease transparency, contrary to Section 13(q)'s intent. 
According to the commenter, fewer issuers will be reporting (due to 
the potential delistings) and those reporting would lose market 
share (due to competitive effects) and hence would have fewer 
payments to report. As discussed above, we do not think potential 
delistings will be likely. By the same token, our analysis above 
suggests that the competition effects of the final rules may not be 
large enough to lead to losses in market share for extraction 
issuers. Thus, the commenter's argument that transparency will 
decrease may be based on an overly pessimistic scenario.
---------------------------------------------------------------------------

    One commenter argued that the direct compliance costs associated 
with the definition of ``project'' that we are adopting are not 
justified because we have no data to show any benefits of requiring the 
disclosure at such a granular level.\726\ We note that most of the 
compliance costs would remain even if we adopted the commenter's 
preferred approach of identifying payments by subnational political 
jurisdiction. Even were we to adopt a less granular disclosure 
requirement (such as, for example, the API Proposal) issuers would 
still be required to track each payment that they make to foreign 
governments and the Federal Government in furtherance of resource 
extraction activities. Issuers would thus still need to modify their 
systems in substantially similar ways to collect data on each payment, 
and this would include tagging a significant amount of information 
about each payment. The principal difference is that issuers would be 
able to aggregate that data in various ways before submitting it to the 
Commission at the end of their fiscal year, but the underlying 
collection systems and tagging would still need to occur for each 
payment to ensure accurate reporting. Thus, complying with this 
approach would entail many of the same costs as the definition of 
``project'' we are adopting: Issuers would still need to track every 
resource extraction payment to foreign governments and the Federal 
Government, including the type of payment it is and which business unit 
paid it. Under the broader project definition advocated by the 
commenter, issuers will themselves have to aggregate the various 
payment flows in their Section 13(q) disclosures, while under the 
definition we are adopting they could not do so and would also have to 
include an additional data tag for each payment specifying the project 
in connection with which it was made.
---------------------------------------------------------------------------

    \726\ See letter from API 1.
---------------------------------------------------------------------------

    Although we lack sufficient data to quantify the potential economic 
losses that could result from our choice of a contract-based definition 
of ``project,'' based on the qualitative analysis above, we find that 
the Section 13(q) disclosure requirements and the definition of 
``project'' that we are adopting are not likely to cause significant 
competitive harms or result in significant losses.
    As an alternative, we could have not defined the term ``project.'' 
Taking this approach could have provided issuers more flexibility in 
applying the term to different business contexts depending on factors 
such as the particular industry or business in which the issuer 
operates or the issuer's size. Under such an approach, however, 
resource extraction issuers could have incurred costs in determining 
their ``projects.'' Moreover, not defining ``project'' could result in 
higher costs for some resource extraction issuers than others if an 
issuer's determination of what constitutes a ``project'' would result 
in more granular information being disclosed than another issuer's 
determination of what constitutes a ``project.'' In addition, not 
defining ``project'' may not be as effective in achieving the 
anticorruption objectives contemplated by the statute because resource 
extraction issuers' determinations of what constitutes a ``project'' 
may differ, which could reduce the comparability of disclosure across 
issuers.
    Finally, we could have adopted the API Proposal, which would allow 
issuers to combine as one ``project'' all of the similar extraction 
activities within a major subnational political jurisdiction. We 
acknowledge that this aggregated disclosure could potentially impose 
fewer competitive burdens on resource extraction issuers--particularly 
those issuers with many similar resource extraction activities 
occurring within a subnational jurisdiction--as the API suggested 
definition would not require issuers to expend the time and resources 
necessary to achieve the type of granular reporting that our proposed 
rules would require. As discussed above in Section II.E, however, we 
believe that such a high-level definition, as opposed to the definition 
we are adopting, would not appropriately serve the anticorruption 
objectives that Congress intended when it enacted Section 13(q).
8. Annual Report Requirement
    Section 13(q) provides that the resource extraction payment 
disclosure must be ``include[d] in an annual report.'' The final rules 
require an issuer to file the payment disclosure in an annual report on 
new Form SD. Form SD will be due no later than 150 days after the end 
of the issuer's most recent fiscal year. This should lessen the burden 
of compliance with Section 13(q) and the related rules because issuers 
generally will not have to incur the burden and cost of providing the 
payment disclosure at the same time that they must fulfill their 
disclosure obligations with respect to Exchange

[[Page 49422]]

Act annual reports.\727\ An additional benefit is that this requirement 
will provide information to users in a standardized manner for all 
issuers rather than in different annual report forms depending on 
whether a resource extraction issuer is a domestic or foreign filer. 
Moreover, requiring the disclosure in new Form SD, rather than in 
issuers' Exchange Act annual reports, should alleviate any concerns and 
costs associated with the disclosure being subject to the officer 
certifications required by Exchange Act Rules 13a-14 and 15d-14.
---------------------------------------------------------------------------

    \727\ For example, a resource extraction issuer may potentially 
be able to save resources to the extent that the timing of its 
obligations with respect to its Exchange Act annual report and its 
obligations to provide payment disclosure allow for it to allocate 
its resources, in particular personnel, more efficiently.
---------------------------------------------------------------------------

    In a change from the proposed rules, the final rules will allow for 
a longer transition period for newly acquired companies that were not 
previously subject to reporting under the final rules.\728\ Thus, the 
final rules will allow issuers that have acquired or otherwise obtain 
control over an issuer whose resource extraction payments are required 
to be disclosed under the final rules, and that has not previously been 
obligated to provide such disclosure pursuant to Rule 13q-1 or another 
``substantially similar'' jurisdiction's requirements, to not commence 
reporting payment information for the acquired company until the second 
Form SD filing due after the effective date of the acquisition. This 
should lessen the burden of compliance with Section 13(q) for such 
issuers. Additionally, the longer transition period should help ensure 
that the final rules do not inadvertently discourage efficient business 
combinations.
---------------------------------------------------------------------------

    \728\ See Section II.G.3 above.
---------------------------------------------------------------------------

    In another change from the proposed rules, the final rules will 
require a resource extraction issuer to comply with Rule 13q-1 and Form 
SD for fiscal years ending no earlier than two years, rather than one 
year, after the effective date of the adopted rules. This longer phase-
in period should provide issuers with sufficient time to establish the 
necessary systems and procedures to capture and track all the required 
payment information before the fiscal year covered by their first Form 
SD filing starts. The extended compliance date will also provide 
issuers with additional time to address potential legal barriers to 
making the required disclosure, such as by amending existing contracts 
to permit disclosure or, when warranted, seeking appropriate exemptive 
relief from the Commission.
    Resource extraction issuers will incur costs associated with 
preparing and filing each Form SD. We do not believe, however, that the 
costs associated with filing each Form SD instead of providing the 
disclosure in an existing form would be significant. We also 
acknowledge that requiring covered issuers to file, rather than 
furnish, the payment information in Form SD may create an incremental 
risk of liability in litigation under Section 18 of the Exchange Act. 
This incremental risk of legal liability could be a benefit to users of 
the information to the extent that issuers will be more attentive to 
the information they file, thereby increasing the quality of the 
reported information. We note however that Section 18 does not create 
strict liability for ``filed'' information.\729\
---------------------------------------------------------------------------

    \729\ See Exchange Act Section 18 [15 U.S.C. 78r]. A plaintiff 
asserting a claim under Section 18 would need to meet the elements 
of the statute to establish a claim, including purchasing or selling 
a security in reliance on the misstatement and incurring damages 
caused by that reliance.
---------------------------------------------------------------------------

    Finally, the final rules do not require the resource extraction 
payment information to be audited or provided on an accrual basis. Not 
requiring the payment information to be audited or provided on an 
accrual basis may result in lower compliance costs than otherwise would 
be the case.\730\ At the same time, the lack of independent audit may 
affect the quality of the payment information. As an alternative, we 
could have chosen to provide, as one commenter suggested,\731\ an 
aggregated and anonymized compilation of company-provided resource 
extraction payment information. According to the commenter, such an 
approach would yield the benefits intended by Congress and at the same 
time reduce issuer compliance costs. We note that, contrary to the 
commenter's assertion, such an alternative would likely limit the 
benefits of disclosure. As discussed more fully in Section II.H, 
requiring project level disclosure by identified registrants provides 
important benefits in terms of combating corruption and promoting 
accountability in resource-rich countries, consistent with the purpose 
of Section 13(q).
---------------------------------------------------------------------------

    \730\ See note 297 of the Proposing Release and accompanying 
text.
    \731\ See letter from API 1.
---------------------------------------------------------------------------

9. Exhibit and Interactive Data Requirement
    Section 13(q) requires the payment disclosure to be electronically 
formatted using an interactive data format. Consistent with the 
proposed rules, the final rules will require a resource extraction 
issuer to provide the required payment disclosure in an XBRL exhibit to 
Form SD that includes all of the electronic tags required by Section 
13(q) and the final rules.\732\ We believe that requiring the specified 
information to be presented in XBRL format will benefit issuers and 
users of the information by promoting consistency and standardization 
of the information and increasing the usability of the payment 
disclosure. Providing the required disclosure elements in a human-
readable and machine-readable (electronically-tagged) format will allow 
users to quickly examine, extract, aggregate, compare, and analyze the 
information in a manner that is most useful to them. This includes 
searching for specific information within a particular submission as 
well as performing large-scale statistical analysis using the 
disclosures of multiple issuers and across date ranges. In a change 
from the Proposing Release, and as suggested by certain commenters, we 
are requiring issuers to tag the subnational geographic location using 
ISO codes. Using ISO codes will standardize references to those 
subnational geographic locations and will benefit the users of this 
information by making it easier to sort and compare the data. It may 
also increase compliance costs for issuers that do not currently use 
such codes in their reporting systems.
---------------------------------------------------------------------------

    \732\ Users of this information should be able to render the 
information by using software available on our Web site at no cost.
---------------------------------------------------------------------------

    Our choice of XBRL as the required interactive data format may 
increase compliance costs for some issuers. The electronic formatting 
costs will vary depending upon a variety of factors, including the 
amount of payment data disclosed and an issuer's prior experience with 
XBRL. While most issuers are already familiar with XBRL because they 
use it to tag financial information in their annual and quarterly 
reports filed with the Commission, issuers that are not already filing 
reports using XBRL (i.e., foreign private issuers that report using 
IFRS) \733\ would incur some start-up costs associated with the format. 
We do not believe, however, that the ongoing costs associated with this 
formatting requirement will be significantly greater than filing the 
data in XML.\734\
---------------------------------------------------------------------------

    \733\ We estimate that 16 of the 425 affected issuers fall into 
this category.
    \734\ See Section II.G.5 of the Proposing Release.
---------------------------------------------------------------------------

    Consistent with the statute, the final rules require a resource 
extraction issuer to include an electronic tag that identifies the 
currency used to make the payments. Under the final rules, if multiple 
currencies are used to make

[[Page 49423]]

payments for a specific project or to a government, a resource 
extraction issuer may choose to provide the amount of payments made for 
each payment type and the total amount per project or per government in 
either U.S. dollars or the issuer's reporting currency.\735\ We 
recognize that a resource extraction issuer could incur costs 
associated with converting payments made in multiple currencies to U.S. 
dollars or its reporting currency. Nevertheless, given the statute's 
tagging requirements and the requirement to disclose total amounts, we 
believe reporting in one currency is necessary.\736\ The final rules 
provide flexibility to issuers in how to perform the currency 
conversion, which may result in lower compliance costs because it 
enables issuers to choose the option that works best for them. To the 
extent issuers choose different options to perform the conversion, it 
may result in less comparability of the payment information and, in 
turn, could result in costs to users of the information.
---------------------------------------------------------------------------

    \735\ See Instruction 2 to Item 2.01 of Form SD.
    \736\ See discussion in Section II.G.5 of the Proposing Release.
---------------------------------------------------------------------------

IV. Paperwork Reduction Act

A. Background

    Certain provisions of the final rules contain ``collection of 
information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\737\ The Commission published a notice 
requesting comment on the collection of information requirements in the 
Proposing Release, and submitted the proposed requirements to the 
Office of Management and Budget (``OMB'') for review in accordance with 
the PRA and its implementing regulations.\738\ Several commenters 
provided qualitative comments on the possible costs of the proposed 
rule and form amendment, but only one commenter addressed our PRA 
analysis.\739\ This comment is discussed below. Where appropriate, we 
have revised our burden estimates to reflect differences between the 
proposed rules and the rules we are adopting today.
---------------------------------------------------------------------------

    \737\ 44 U.S.C. 3501 et seq.
    \738\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
    \739\ See letter from Claigan.
---------------------------------------------------------------------------

    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The title for the collection of 
information is:
     ``Form SD'' (OMB Control No. 3235-0697).
    Form SD is currently used to file Conflict Minerals Reports 
pursuant to Rule 13p-1 of the Exchange Act. We are adopting amendments 
to Form SD to accommodate disclosures required by Rule 13q-1, which 
requires resource extraction issuers to disclose information about 
payments made by the issuer, a subsidiary of the issuer, or an entity 
under the control of the issuer to foreign governments or the U.S. 
Federal Government for the purpose of the commercial development of 
oil, natural gas, or minerals. Form SD is filed on EDGAR with the 
Commission.
    The final rules and amendment to the form implement Section 13(q) 
of the Exchange Act, which was added by Section 1504 of the Act. 
Section 13(q) requires the Commission to ``issue final rules that 
require each resource extraction issuer to include in an annual report 
of the resource extraction issuer information relating to any payment 
made by the resource extraction issuer, a subsidiary of the resource 
extraction issuer, or an entity under the control of the resource 
extraction issuer to a foreign government or the Federal Government for 
the purpose of the commercial development of oil, natural gas, or 
minerals, including--(i) the type and total amount of such payments 
made for each project of the resource extraction issuer relating to the 
commercial development of oil, natural gas, or minerals, and (ii) the 
type and total amount of such payments made to each government.'' \740\ 
Section 13(q) also mandates the submission of the payment information 
in an interactive data format, and provides the Commission with the 
discretion to determine the applicable interactive data standard.\741\ 
The final rules require the mandated payment information to be provided 
in an XBRL exhibit to Form SD. The disclosure requirements apply 
equally to U.S. issuers and foreign issuers meeting the definition of 
``resource extraction issuer.''
---------------------------------------------------------------------------

    \740\ 15 U.S.C. 78m(q)(2)(A).
    \741\ 15 U.S.C. 78m(q)(2)(C) and (D).
---------------------------------------------------------------------------

    Compliance with the rules by affected issuers is mandatory. 
Responses to the information collections are generally not kept 
confidential and there would be no mandatory retention period for the 
collection of information.

B. Estimate of Issuers

    The number, type, and size of the issuers that are required to file 
the payment information required in Form SD, as amended, is uncertain, 
but, as discussed in the economic analysis above, we estimate that the 
number of potentially affected issuers is 755.\742\ Of these issuers, 
we have identified 192 that may be subject to similar resource 
extraction payment disclosure rules in other jurisdictions by the time 
the final rules are adopted and 138 shell companies and other smaller 
issuers that are unlikely to make any payments that would be subject to 
the disclosure requirements.\743\ For the issuers subject to similar 
disclosure rules in other jurisdictions, the additional costs to comply 
with our rules will be much lower than costs for other issuers.\744\ 
For the smaller issuers that are unlikely to be subject to the rules, 
we believe there would be no additional costs associated with our 
rules. Accordingly, we estimate that 425 issuers will bear the full 
costs of compliance with the final rules, with 192 bearing 
significantly lower costs.
---------------------------------------------------------------------------

    \742\ See Section III.A above. As discussed in Section III.A 
above, we derived the number of potentially affected issuers using 
data from 2015 to estimate the number of issuers that might make 
payments covered by the final rules. This number does not reflect 
the number of issuers that actually made resource extraction 
payments to governments.
    \743\ See Section III.B.2 above (describing in more detail how 
we identified issuers that may be subject to foreign reporting 
requirements and how we used revenues and net cash flows from 
investing activities and shell company status to identify issuers 
that would be unlikely to make payments exceeding the proposed de 
minimis threshold).
    \744\ Under the final rules, a determination by the Commission 
that another jurisdiction's reporting requirements are substantially 
similar to ours would lower an issuer's compliance burden. The 
Commission has made this determination with respect to the EU 
Directives, ESTMA, and the USEITI. If the issuer is subject to the 
EU Directives or ESTMA it would already have gathered, or have 
systems in place to gather, resource extraction payment data by the 
time it must comply with the final rules. If the issuer is subject 
to the USEITI it would already have gathered, or have systems in 
place to gather, resource extraction payment data with respect to 
payments made to the U.S. Federal Government from federal lands or 
waters. Although for purposes of our economic analysis the costs to 
the 192 issuers that may already be subject to similar resource 
extraction payment disclosure rules would be negligible, we have 
included them in our estimate of issuers for PRA purposes because 
under the final rules they would continue to have an obligation to 
file a report on Form SD in XBRL, although with a significantly 
lower associated burden. See Section II.J above.
---------------------------------------------------------------------------

C. Estimate of Issuer Burdens

    After considering the comments and international developments,\745\ 
we continue to derive our burden estimates by estimating the average 
number of hours it would take an issuer to prepare

[[Page 49424]]

and file the required disclosure.\746\ In deriving our estimates, we 
recognize that the burdens would likely vary among individual issuers 
based on a number of factors, including the size and complexity of 
their operations and whether they are subject to similar disclosure 
requirements in other jurisdictions.
---------------------------------------------------------------------------

    \745\ Although most of the comments we received with respect to 
our PRA estimates related to the 2010 Proposing Release, which 
required the disclosure in Forms 10-K, 20-F, and 40-F, among other 
differences, we have considered these estimates in arriving at our 
PRA estimate for Form SD because, although the disclosures would be 
provided pursuant to a new rule and on Form SD, the disclosure 
requirements themselves are similar. We also believe that this is 
the more conservative approach given that changes from the 2010 
Proposing Release should generally reduce the burdens that were 
considered by those commenters.
    \746\ As discussed above, Rule 13q-1 requires resource 
extraction issuers to file the payment information required in Form 
SD. The collection of information requirements are reflected in the 
burden hours estimated for Form SD. Therefore, Rule 13q-1 does not 
impose any separate burden.
---------------------------------------------------------------------------

    When determining the estimates described below, we have assumed 
that 75% of the burden of preparation is carried by the issuer 
internally and 25% of the burden of preparation is carried by outside 
professionals retained by the issuer at an average cost of $400 per 
hour.\747\ One commenter questioned the basis for using $400 per hour. 
This commenter used $150 per hour in its analysis of the costs 
associated with the proposed rules. This commenter stated that $150 per 
hour was a ``conservative estimate'' based on a rounded multiple of the 
hourly mean wage for accountants and auditors in the field of 
Management, Scientific, and Technical Consulting Services ($37.27 x 3 = 
111.81, rounded up to $150).\748\ We disagree with this estimate, 
however, because that rate does not factor in the outside professional 
costs associated with preparing a document subject to potential 
liability under applicable securities laws. Resource extraction issuers 
likely will seek the advice of attorneys to mitigate the risks 
associated with such liability, as well as to help them comply with the 
rule and form requirements. Thus, consistent with our conservative 
approach when considering the applicable costs and burdens, we continue 
to use the $400 per hour estimate.
---------------------------------------------------------------------------

    \747\ We recognize that the costs of retaining outside 
professionals may vary depending on the nature of the professional 
services, but for purposes of this PRA analysis we estimate that 
such costs would be an average of $400 per hour. This is the rate we 
typically estimate for outside legal services used in connection 
with public company reporting. We note that no commenters provided 
us with an alternative rate estimate for these purposes in 
connection with the 2010 Proposing Release.
    \748\ See letter from Claigan.
---------------------------------------------------------------------------

    The portion of the burden carried by outside professionals is 
reflected as a cost, while the portion of the burden carried by the 
issuer internally is reflected in hours. In connection with the 2010 
Proposing Release, we received estimates from some commenters expressed 
in burden hours and estimates from other commenters expressed in dollar 
costs.\749\ We expect that the rules' effect would be greatest during 
the first year of their effectiveness and diminish in subsequent years. 
To account for this expected diminishing burden, we believe that a 
three-year average of the expected implementation burden during the 
first year and the expected ongoing compliance burden during the next 
two years is a reasonable estimate.
---------------------------------------------------------------------------

    \749\ See 2012 Adopting Release at Section IV.B.
---------------------------------------------------------------------------

    In connection with the 2010 Proposing Release, some commenters 
estimated implementation costs of tens of millions of dollars for large 
filers and millions of dollars for smaller filers.\750\ These 
commenters did not describe how they defined ``small'' and ``large'' 
filers. One commenter provided an estimate of $50 million in 
implementation costs if the definition of ``project'' is narrow and the 
level of disaggregation is high across other reporting parameters, 
though it did not provide alternate estimates for different definitions 
of ``project'' or different levels of disaggregation.\751\ We note that 
the commenter that provided this estimate was among the largest 20 oil 
and gas companies in the world,\752\ and we believe that the estimate 
it provided may be representative of the costs to companies of similar 
large size rather than smaller companies.
---------------------------------------------------------------------------

    \750\ See letters from API 1 (pre-proposal) and ExxonMobil 1 
(pre-proposal).
    \751\ See letter from ExxonMobil 1 (pre-proposal).
    \752\ See letter from API (Oct. 12, 2010) (ranking the 75 
largest oil and gas companies by reserves and production).
---------------------------------------------------------------------------

    Generally, we note that some of the estimates we received may 
reflect the burden to a particular commenter, and may not represent the 
burden for other resource extraction issuers.\753\ Also, while we 
received estimates for smaller companies and an estimate for one of the 
largest companies, we did not receive data on companies of varying 
sizes in between the two extremes.\754\ Finally, commenters' estimates 
on the burdens associated with initial implementation and ongoing 
compliance varied widely.
---------------------------------------------------------------------------

    \753\ For example, one commenter's letter indicated that it had 
approximately 120 operating entities. See letter from Rio Tinto 
(pre-proposal).
    \754\ See letter from API 1 (pre-proposal) (estimating 
implementation costs in the tens of millions of dollars for large 
filers and millions of dollars for many smaller filers). This 
commenter did not explain how it defined small and large filers.
---------------------------------------------------------------------------

    As discussed above, we estimate that 425 issuers would bear the 
full costs of compliance and 192 issuers are subject to similar 
resource extraction payment disclosure rules, such that the additional 
costs to comply with our rules will be much lower than costs for other 
issuers. We also estimate that 138 smaller issuers, including shell 
companies, will bear no compliance costs because it is likely that any 
payments they make for the purpose of the commercial development of 
oil, natural gas, or minerals will be considered de minimis under the 
proposed rules. We have used the cost estimates provided by commenters 
to estimate the compliance burden for affected issuers for PRA 
purposes. To distinguish between the burden faced by the two groups of 
affected issuers described above, we have assumed that the issuers who 
may already be complying with a similar foreign disclosure regime would 
have compliance costs of approximately five percent of the issuers that 
bear the full costs of compliance.\755\ For issuers bearing the full 
costs, we note that Barrick Gold estimated an initial compliance burden 
of 1,000 hours (500 hours for initial changes to internal books and 
records and 500 hours for initial compliance).\756\ Although we believe 
that initial implementation costs would increase with the size of the 
issuer, as discussed in our economic analysis above,\757\ commenters 
did not provide estimates on the fraction of compliance costs that 
would be fixed versus variable. Also, since commenters' cost estimates 
were based on policy choices made in the 2010 Proposing Release, they 
might not reflect these commenters' views on the final rules. 
Unfortunately, we are unable to reliably quantify the reduction in 
these cost estimates based on the policy changes reflected in the final 
rules. Thus, despite Barrick Gold being a large accelerated filer and 
commenting on proposed rules that we believe would have been more 
onerous than the final rules, we use its estimate of 1,000 hours as a 
conservative estimate.
---------------------------------------------------------------------------

    \755\ We are using the proposed five percent estimate even 
though it was developed prior to the Commission granting alternative 
reporting status to the EU Directives and ESTMA. We believe this 
approach conservatively estimates the burden alternative report 
filers will face (e.g., when converting the alternative report to 
XBRL format or possibly translating the report to English).
    \756\ We use Barrick Gold's estimate because it is the only 
commenter that provided a number of hours and dollar value estimates 
for initial and ongoing compliance costs. Although in the economic 
analysis above we used ExxonMobil's dollar value estimate to 
calculate an upper bound of compliance costs, we are unable to 
calculate the number of burden hours for purposes of the PRA 
analysis using ExxonMobil's dollar value inputs.
    \757\ See Section III.B.2 above.
---------------------------------------------------------------------------

    We believe that the burden associated with this collection of 
information will be greatest during the implementation period to 
account for initial set up costs, but that ongoing compliance costs 
would be less because companies would have already made any necessary

[[Page 49425]]

modifications to their systems to capture and report the information 
required by the final rules. In connection with the 2010 Proposing 
Release, two commenters provided estimates of ongoing compliance costs: 
Rio Tinto provided an estimate of 5,000-10,000 burden hours for ongoing 
compliance,\758\ while Barrick Gold provided an estimate of 500 burden 
hours for ongoing compliance. Based on total assets, Rio Tinto is one 
of the largest resource extraction issuers. We believe that, because of 
Rio Tinto's size, the estimate it provided may be representative of the 
burden for resource extraction issuers of a similar size, but may not 
be a representative estimate for smaller resource extraction issuers. 
Although in terms of total assets Barrick Gold is among the largest 
resource extraction issuers that are Exchange Act reporting companies, 
it is closer in size to the average issuer than is Rio Tinto. As such, 
we believe that Barrick Gold's estimate is a better estimate of the 
ongoing compliance burden hours. We acknowledge, however, that using 
Barrick Gold's estimate is a conservative approach. For example, the 
average total assets of issuers that we believe would be bearing the 
full costs of the rules is 19% of Barrick Gold's total assets for 2015 
($6.4 billion/$33.9 billion).\759\
---------------------------------------------------------------------------

    \758\ See letter from Rio Tinto (pre-proposal). This commenter 
estimated 100-200 hours of work at the head office, an additional 
100-200 hours of work providing support to its business units, and a 
total of 4,800-9,600 hours by its business units. We arrived at the 
estimated range of 5,000-10,000 hours by adding the estimates 
provided by this commenter (100 + 100 + 4,800 = 5,000 and 200 + 200 
+ 9,600 = 10,000).
    \759\ The average estimated resource extraction issuer's total 
assets compared to Rio Tinto's total assets ($108.0 billion for 
2015) is 6%.
---------------------------------------------------------------------------

    Thus, using the three-year average of the expected burden during 
the first year and the expected ongoing burden during the next two 
years, we estimate that the incremental collection of information 
burden associated with the rules would be 667 burden hours per fully 
affected respondent (1000 + 500 + 500)/3 years). We estimate that the 
rules would result in an internal burden of approximately 212,606.25 
hours (425 responses x 667 hours/response x .75) for issuers bearing 
the full costs and 4,802.4 hours (192 responses x 33.35 hours/response 
x .75) for issuers that are subject to similar resource extraction 
payment disclosure rules in other jurisdictions, amounting to a total 
incremental company burden of 217,408.65 hours (212,606.25 + 4,802.4).
    Outside professional costs would be $28,347,500 (425 responses x 
667 hours/response x .25 x $400) for issuers bearing the full costs and 
$640,320 (192 responses x 33.35 hours/response x .25 x $400) for 
issuers that are subject to similar resource extraction payment 
disclosure rules in other jurisdictions, amounting to total outside 
professional costs of $28,987,820 ($28,347,500 + $640,320). Barrick 
Gold also indicated that its initial compliance costs would include 
$100,000 for IT consulting, training, and travel costs. Again, we 
believe this to be a conservative estimate given the size of Barrick 
Gold compared to our estimate of the average resource extraction 
issuer's size. We do not, however, believe that these initial IT costs 
would apply to the issuers that are already subject to similar resource 
extraction payment disclosure rules, since those issuers should already 
have such IT systems in place to comply with a foreign regime. Thus, we 
estimate total IT compliance costs to be $42,500,000 (425 issuers x 
$100,000). We have added the estimated IT compliance costs to the cost 
estimates for other professional costs discussed above to derive total 
professional costs for PRA purposes of $71,487,820 ($28,987,820 + 
$42,500,000) for all issuers.\760\ The total burden hours and total 
professional costs discussed above are in addition to the existing 
estimated hour and cost burdens applicable to Form SD as a result of 
compliance with Exchange Act Rule 13p-1.
---------------------------------------------------------------------------

    \760\ We note that this PRA cost estimate serves a different 
purpose than the economic analysis and, accordingly, estimates costs 
differently. See Section III above. One of these differences is that 
the economic analysis estimates average total compliance costs for 
affected issuers without dividing such costs between internal burden 
hours and external cost burdens. See Section III.B.2.b above.
---------------------------------------------------------------------------

V. Final Regulatory Flexibility Act Analysis

    This Final Regulatory Flexibility Act Analysis (``FRFA'') has been 
prepared in accordance with the Regulatory Flexibility Act.\761\ It 
relates to rule and form amendments that we are adopting today to 
implement Section 13(q) of the Exchange Act, which concerns certain 
disclosure obligations of resource extraction issuers. As defined by 
Section 13(q), a resource extraction issuer is an issuer that is 
required to file an annual report with the Commission and engages in 
the commercial development of oil, natural gas, or minerals. An Initial 
Regulatory Flexibility Analysis (IRFA) was prepared in accordance with 
the Regulatory Flexibility Act and included in the Proposing Release.
---------------------------------------------------------------------------

    \761\ 5 U.S.C. 603.
---------------------------------------------------------------------------

A. Need for the Rules

    The rule and form amendments are designed to implement the 
requirements of Section 13(q), which was added by Section 1504 of the 
Act. Specifically, the rule and form amendments will require a resource 
extraction issuer to disclose in an annual report certain information 
relating to any payment made by the issuer, a subsidiary of the issuer, 
or an entity under the issuer's control to a foreign government or the 
U.S. Federal Government for the purpose of the commercial development 
of oil, natural gas, or minerals. An issuer will be required to include 
that information in an exhibit to Form SD. The exhibit must be 
formatted in XBRL.

B. Significant Issues Raised by Public Comments

    In the Proposing Release, we requested comment on every aspect of 
the IRFA, including the number of small entities that would be affected 
by the proposed rule and form amendments, the existence or nature of 
the potential impact of the proposals on small entities discussed in 
the analysis, and how to quantify the impact of the proposed rules. We 
did not receive any comments specifically addressing the IRFA. We did, 
however, receive one comment recommending that smaller reporting 
companies be given more time before being required to comply with the 
final rules.\762\ This commenter believed that, in the aggregate, 
smaller reporting companies represent a small percentage of the total 
payments made to governments by resource extraction issuers and 
therefore a longer transition period should not impair the 
effectiveness of the final rules. As discussed above, other commenters 
disagreed with that approach.\763\ Although not limited to small 
entities, the final rules take into account the suggestion for a longer 
transition period by providing a two-year transition period for all 
issuers rather than the one-year transition period that was 
proposed.\764\
---------------------------------------------------------------------------

    \762\ See letter from Ropes & Gray. In connection with the 2010 
Proposing Release we received comments requesting an exemption for a 
``small entity'' or ``small business'' having $5 million or less in 
assets on the last day of its more recently completed fiscal year; 
however, these comments were not raised again by those commenters 
after the Proposing Release. See 2012 Adopting Release, at n.662 and 
accompanying text.
    \763\ See Section II.I above.
    \764\ See Section II.M.3 above for additional details.
---------------------------------------------------------------------------

C. Small Entities Subject to the Rules
    The final rules will affect small entities that are required to 
file an annual report with the Commission

[[Page 49426]]

under Section 13(a) or Section 15(d) of the Exchange Act and are 
engaged in the commercial development of oil, natural gas, or minerals. 
Exchange Act Rule 0-10(a) \765\ defines an issuer (other than an 
investment company) to be a ``small business'' or ``small 
organization'' for purposes of the Regulatory Flexibility Act if it had 
total assets of $5 million or less on the last day of its most recent 
fiscal year. Based on a review of total assets for Exchange Act 
registrants filing under certain SICs,\766\ we estimate that there are 
approximately 229 companies that will be considered resource extraction 
issuers under the final rules and that may be considered small 
entities.
---------------------------------------------------------------------------

    \765\ 17 CFR 240.0-10(a).
    \766\ See Section III.B above for a discussion of how we 
estimated the number of ``resource extraction issuers'' under the 
final rules.
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The final rule and form amendments add to the annual disclosure 
requirements of companies meeting the definition of resource extraction 
issuer, including small entities, by requiring them to provide the 
payment disclosure mandated by Section 13(q) in Form SD. That 
information must include:
     The type and total amount of payments made for each 
project of the issuer relating to the commercial development of oil, 
natural gas, or minerals; and
     the type and total amount of those payments made to each 
government.
    A resource extraction issuer must provide the required disclosure 
in an exhibit to Form SD formatted in XBRL. Consistent with the 
statute, the final rules require an issuer to submit the payment 
information using electronic tags that identify, for any not de minimis 
payment made by a resource extraction issuer to a foreign government or 
the U.S. Federal Government:
     The type and total amount of such payments made for each 
project of the resource extraction issuer relating to the commercial 
development of oil, natural gas, or minerals;
     The type and total amount of such payments for all 
projects made to each government;
     The total amounts of the payments, by payment type;
     The currency used to make the payments;
     The fiscal year in which the payments were made;
     The business segment of the resource extraction issuer 
that made the payments;
     The governments (including any foreign government or the 
Federal Government) that received the payments and the country in which 
each such government is located;
     The project of the resource extraction issuer to which the 
payments relate;
     The particular resource that is the subject of commercial 
development; and
     The subnational geographic location of the project.
    The same payment disclosure requirements will apply to U.S. and 
foreign resource extraction issuers.

E. Agency Action To Minimize Effect on Small Entities

    The Regulatory Flexibility Act directs us to consider significant 
alternatives that would accomplish the stated objectives, while 
minimizing any significant adverse impact on small entities. In 
connection with adopting the final rule and form amendments, we 
considered, as alternatives, establishing different compliance or 
reporting requirements which take into account the resources available 
to smaller entities; exempting smaller entities from coverage of the 
disclosure requirements, or any part thereof; clarifying, 
consolidating, or simplifying the disclosure for small entities; and 
using performance standards rather than design standards.
    Section 13(q) is designed to enhance the transparency of payments 
by resource extraction issuers to governments and providing different 
disclosure requirements for small entities or exempting them from the 
coverage of the requirements may undermine the intended benefits of the 
disclosure mandated by Section 13(q). As discussed above, we estimate 
that a significant number (43%) of affected issuers are smaller 
reporting companies; therefore, exempting such issuers from the final 
rules could create a significant gap in the intended transparency. 
Furthermore, no commenters supported an exemption or different 
reporting requirements for small entities in response to the Proposing 
Release. Only one commenter specifically called for an extended 
transition period for such entities. In response to that comment and 
other concerns, we have provided a longer transition period prior to 
the application of the rules to all resource extraction issuers, rather 
than only small entities.
    We have used design rather than performance standards in connection 
with the final rule and form amendments because the statutory language, 
which requires electronic tagging of specific items, contemplates 
specific disclosure requirements and no commenters objected to this 
approach. We also believe that the rules would be more useful to users 
of the information if there are specific disclosure requirements that 
promote transparent and consistent disclosure among all resource 
extraction issuers. Such requirements should help further the statutory 
goal of supporting international transparency promotion efforts. For 
this reason, we have not used consolidated or simplified disclosure 
requirements for small entities.

VI. Statutory Authority

    We are adopting the rule and form amendments contained in this 
document under the authority set forth in Sections 3(b), 12, 13, 15, 
23(a), and 36 of the Exchange Act.

List of Subjects in 17 CFR Parts 240 and 249b

    Reporting and recordkeeping requirements, Securities.

    In accordance with the foregoing, we are amending title 17, chapter 
II of the Code of Federal Regulations as follows:

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
1. The authority citation for part 240 continues to read in part as 
follows:

    Authority:  15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78dd, 78ll, 78mm, 
80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, 7201 et seq., 
and 8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350; 
and Pub. L. 111-203, 939A, 124 Stat. 1376 (2010), unless otherwise 
noted.
* * * * *

0
2. Section 240.13q-1 is revised to read as follows:


Sec.  240.13q-1  Disclosure of payments made by resource extraction 
issuers.

    (a) Resource extraction issuers. Every issuer that is required to 
file an annual report with the Commission pursuant to Section 13 or 
15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) and engages in the 
commercial development of oil, natural gas, or minerals must file a 
report on Form SD (17 CFR 249b.400) within the period specified in that 
Form disclosing the information required by the applicable items of 
Form SD as specified in that Form.
    (b) Anti-evasion. Disclosure is required under this section in 
circumstances in which an activity related to the commercial 
development

[[Page 49427]]

of oil, natural gas, or minerals, or a payment or series of payments 
made by a resource extraction issuer to a foreign government or the 
Federal Government for the purpose of commercial development of oil, 
natural gas, or minerals is not, in form or characterization, within 
one of the categories of activities or payments specified in Form SD, 
but is part of a plan or scheme to evade the disclosure required under 
this section.
    (c) Alternative reporting. An application for recognition of a 
regime as substantially similar for purposes of alternative reporting 
must be filed in accordance with the procedures set forth in Rule 0-13 
(Sec.  240.0-13), except that, for purposes of this paragraph (c), 
applications may be submitted by resource extraction issuers, 
governments, industry groups, or trade associations.
    (d) Exemptive relief. An application for exemptive relief under 
this section may be filed in accordance with the procedures set forth 
in Rule 0-12 (Sec.  240.0-12).
    (e) Public compilation. To the extent practicable, the staff will 
periodically make a compilation of the information required to be filed 
under this section publicly available online. The staff may determine 
the form, manner and timing of the compilation, except that no 
information included therein may be anonymized (whether by redacting 
the names of the resource extraction issuer or otherwise).
    PART 249b--FURTHER FORMS, SECURITIES EXCHANGE ACT OF 1934

0
3. The authority citation for part 249b is amended by revising the 
entry for Sec.  249b.400 to read in part as follows:

    Authority:  15 U.S.C. 78a et seq., unless otherwise noted.
* * * * *
    Section 249b.400 is also issued under secs. 1502 and 1504, Pub. L. 
111-203, 124 Stat. 2213 and 2220.

0
4. Amend Form SD (referenced in Sec.  249b.400) by:
0
a. Adding a check box for Rule 13q-1;
0
b. Revising instruction A. under ``General Instructions'';
0
c. Redesignating instruction B.2. as B.3 and adding new instructions 
B.2. and B.4. under the ``General Instructions''; and
0
d. Redesignating Section 2 as Section 3, adding new Section 2, and 
revising newly redesignated Section 3 under the ``Information to be 
Included in the Report''.
    The addition and revision read as follows:
    Note: The text of Form SD does not, and this amendment will not, 
appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM SD

Specialized Disclosure Report

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(Exact name of the registrant as specified in its charter)

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(State or other jurisdiction of incorporation or organization)

-----------------------------------------------------------------------
(Commission
File Number)

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(I.R.S. Employer Identification No.)

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(Full mailing address of principal executive offices)

-----------------------------------------------------------------------
(Name and telephone number, including area code, of the person to 
contact in connection with this report.)

Check the appropriate box to indicate the rule pursuant to which this 
Form is being filed, and provide the period to which the information in 
this Form applies:

__Rule 13p-1 under the Securities Exchange Act (17 CFR 240.13p-1) for 
the reporting period from January 1 to December 31,___.
__Rule 13q-1 under the Securities Exchange Act (17 CFR 240.13q-1) for 
the fiscal year ended___.

GENERAL INSTRUCTIONS

A. Rule as to Use of Form SD.

    This Form shall be used for a report pursuant to Rule 13p-1 (17 CFR 
240.13p-1) and Rule 13q-1 (17 CFR 240.13q-1) under the Securities 
Exchange Act of 1934 (the ``Exchange Act'').

B. Information to be Reported and Time for Filing of Reports.

    1. * * *
    2. Form filed under Rule 13q-1. File the information required by 
Section 2 of this form on EDGAR no later than 150 days after the end of 
the issuer's most recent fiscal year.
    3. If the deadline for filing this Form occurs on a Saturday, 
Sunday or holiday on which the Commission is not open for business, 
then the deadline shall be the next business day.
    4. The information and documents filed in this report shall not be 
deemed to be incorporated by reference into any filing under the 
Securities Act or the Exchange Act, unless the registrant specifically 
incorporates it by reference into such filing.
* * * * *

INFORMATION TO BE INCLUDED IN THE REPORT

* * * * *

Section 2--Resource Extraction Issuer Disclosure

Item 2.01 Resource Extraction Issuer Disclosure and Report

(a) Required Disclosure. A resource extraction issuer must file an 
annual report on Form SD with the Commission, and include as an exhibit 
to this Form SD, information relating to any payment made during the 
fiscal year covered by the annual report by the resource extraction 
issuer, a subsidiary of the resource extraction issuer, or an entity 
under the control of the resource extraction issuer, to a foreign 
government or the Federal Government, for the purpose of the commercial 
development of oil, natural gas, or minerals. The resource extraction 
issuer is not required to have the information audited. The payment 
information must be provided on a cash basis. The resource extraction 
issuer must provide a statement in the body of the Form SD that the 
specified payment disclosure required by this Form is included in such 
exhibit. The resource extraction issuer must include the following 
information in the exhibit, which must present the information in the 
eXtensible Business Reporting Language (XBRL) electronic format:

    (1) The type and total amount of such payments, by payment type 
listed in paragraph (d)(8)(iii) of this Item, made for each project of 
the resource extraction issuer relating to the commercial development 
of oil, natural gas, or minerals;
    (2) The type and total amount of such payments, by payment type 
listed in paragraph (d)(8)(iii) of this Item, for all projects made to 
each government;
    (3) The total amounts of the payments, by payment type listed in 
paragraph (d)(8)(iii) of this Item;
    (4) The currency used to make the payments;
    (5) The fiscal year in which the payments were made;
    (6) The business segment of the resource extraction issuer that 
made the payments;
    (7) The governments (including any foreign government or the 
Federal Government) that received the payments and the country in which 
each such government is located;

[[Page 49428]]

    (8) The project of the resource extraction issuer to which the 
payments relate;
    (9) The particular resource that is the subject of commercial 
development; and
    (10) The subnational geographic location of the project.

(b) Delayed Reporting. (1) A resource extraction issuer may delay 
disclosing payment information related to exploratory activities until 
the Form SD filed for the fiscal year immediately following the fiscal 
year in which the payment was made. For purposes of this paragraph, 
payment information related to exploratory activities includes all 
payments made as part of the process of (i) identifying areas that may 
warrant examination, (ii) examining specific areas that are considered 
to have prospects of containing oil and gas reserves, or (iii) as part 
of a mineral exploration program, in each case limited to exploratory 
activities that were commenced prior to any development or extraction 
activities on the property, any adjacent property, or any property that 
is part of the same project.

    (2) A resource extraction issuer that has acquired (or otherwise 
obtains control over) an entity that has not been obligated to provide 
disclosure pursuant to Rule 13q-1 or another ``substantially similar'' 
jurisdiction's requirements in such entity's last full fiscal year is 
not required to commence reporting payment information for such 
acquired entity until the Form SD filed for the fiscal year immediately 
following the effective date of the acquisition. A resource extraction 
issuer must disclose that it is relying on this accommodation in the 
body of its Form SD filing.

(c) Alternative Reporting. (1) A resource extraction issuer that is 
subject to the resource extraction payment disclosure requirements of 
an alternative reporting regime that has been deemed by the Commission 
to be substantially similar to the requirements of Rule 13q-1 (17 CFR 
240.13q-1) may satisfy its disclosure obligations under paragraph (a) 
of this Item 2.01 by including, as an exhibit to this Form SD, a report 
complying with the reporting requirements of the alternative 
jurisdiction.

    (2) The alternative report must be the same as the one prepared and 
made publicly available pursuant to the requirements of the approved 
alternative reporting regime, subject to changes necessary to comply 
with any conditions to alternative reporting set forth by the 
Commission.
    (3) The resource extraction issuer must: (i) State in the body of 
the Form SD that it is relying on the alternative reporting provision; 
(ii) identify the alternative reporting regime for which the report was 
prepared; (iii) describe how to access the publicly filed report in the 
alternative jurisdiction; and (iv) specify that the payment disclosure 
required by this Form is included in an exhibit to this Form SD.
    (4) The alternative report must be provided in XBRL format.
    (5) A fair and accurate English translation of the entire report 
must be filed if the report is in a foreign language. Project names may 
be presented in their original language, in addition to the English 
translation of the project name, if the resource extraction issuer 
believes that such an approach would facilitate identification of the 
project by users of the disclosure.
    (6) Unless the Commission provides otherwise in an exemptive order, 
a resource extraction issuer may follow the submission deadline of an 
approved alternative jurisdiction if it files a notice on Form SD-N on 
or before the due date of its Form SD indicating its intent to file the 
alternative report using the alternative jurisdiction's deadline. If a 
resource extraction issuer fails to file such notice on a timely basis, 
or files such a notice but fails to file the alternative report within 
two business days of the alternative jurisdiction's deadline, it may 
not rely on this Item 2.01(c) for the following fiscal year.
    (7) Resource extraction issuers must also comply with any 
additional requirements that are provided by the Commission upon 
granting an alternative reporting accommodation, as well as subsequent 
changes in such requirements.

(d) Definitions. For purposes of this item, the following definitions 
apply:

    (1) Business segment means a business segment consistent with the 
reportable segments used by the resource extraction issuer for purposes 
of financial reporting.
    (2) Commercial development of oil, natural gas, or minerals means 
exploration, extraction, processing, and export of oil, natural gas, or 
minerals, or the acquisition of a license for any such activity.
    (3) Control means that the resource extraction issuer consolidates 
the entity or proportionately consolidates an interest in an entity or 
operation under the accounting principles applicable to the financial 
statements included in the resource extraction issuer's periodic 
reports filed pursuant to the Exchange Act (i.e., under generally 
accepted accounting principles in the United States (U.S. GAAP) or 
International Financial Reporting Standards as issued by the 
International Accounting Standards Board (IFRS), but not both). A 
foreign private issuer that prepares financial statements according to 
a comprehensive set of accounting principles, other than U.S. GAAP or 
IFRS, and files with the Commission a reconciliation to U.S. GAAP must 
determine control using U.S. GAAP.
    (4) Export means the movement of a resource across an international 
border from the host country to another country by a company with an 
ownership interest in the resource. Export does not include the 
movement of a resource across an international border by a company that 
(i) is not engaged in the exploration, extraction, or processing of 
oil, natural gas, or minerals and (ii) acquired its ownership interest 
in the resource directly or indirectly from a foreign government or the 
Federal Government. Export also does not include cross-border 
transportation activities by an entity that is functioning solely as a 
service provider, with no ownership interest in the resource being 
transported.
    (5) Extraction means the production of oil and natural gas as well 
as the extraction of minerals.
    (6) Foreign government means a foreign government, a department, 
agency, or instrumentality of a foreign government, or a company at 
least majority owned by a foreign government. As used in this Item 
2.01, foreign government includes a foreign national government as well 
as a foreign subnational government, such as the government of a state, 
province, county, district, municipality, or territory under a foreign 
national government.
    (7) Not de minimis means any payment, whether made as a single 
payment or a series of related payments, which equals or exceeds 
$100,000, or its equivalent in the resource extraction issuer's 
reporting currency, during the fiscal year covered by this Form SD. In 
the case of any arrangement providing for periodic payments or 
installments, a resource extraction issuer must use the aggregate 
amount of the related periodic payments or installments of the related 
payments in determining whether the payment threshold has been met for 
that series of payments, and accordingly, whether disclosure is 
required.
    (8) Payment means an amount paid that:
    (i) Is made to further the commercial development of oil, natural 
gas, or minerals;
    (ii) Is not de minimis; and
    (iii) Is one or more of the following:
    (A) Taxes;
    (B) Royalties;

[[Page 49429]]

    (C) Fees;
    (D) Production entitlements;
    (E) Bonuses;
    (F) Dividends;
    (G) Payments for infrastructure improvements; and
    (H) Community and social responsibility payments that are required 
by law or contract.
    (9) Project means operational activities that are governed by a 
single contract, license, lease, concession, or similar legal 
agreement, which form the basis for payment liabilities with a 
government. Agreements that are both operationally and geographically 
interconnected may be treated by the resource extraction issuer as a 
single project.
    (10) Resource extraction issuer means an issuer that:
    (i) Is required to file an annual report with the Commission 
pursuant to Section 13 or 15(d) of the Exchange Act (15 U.S.C. 78m or 
78o(d)); and
    (ii) Engages in the commercial development of oil, natural gas, or 
minerals.
    (11) Subsidiary means an entity controlled directly or indirectly 
through one or more intermediaries.

Instructions to Item 2.01

Disclosure by Subsidiaries and other Controlled Entities

    (1) If a resource extraction issuer is controlled by another 
resource extraction issuer that has filed a Form SD disclosing the 
information required by Item 2.01 for the controlled entity, then such 
controlled entity is not required to file the disclosure required by 
Item 2.01 separately. In such circumstances, the controlled entity must 
file a notice on Form SD indicating that the required disclosure was 
filed on Form SD by the controlling entity, identifying the controlling 
entity and the date it filed the disclosure. The reporting controlling 
entity must note that it is filing the required disclosure for a 
controlled entity and must identify the controlled entity on its Form 
SD filing.

Currency Disclosure and Conversion

    (2) A resource extraction issuer must report the amount of payments 
made for each payment type, and the total amount of payments made for 
each project and to each government, during the reporting period in 
either U.S. dollars or the resource extraction issuer's reporting 
currency. If a resource extraction issuer has made payments in 
currencies other than U.S. dollars or its reporting currency, it may 
choose to calculate the currency conversion between the currency in 
which the payment was made and U.S. dollars or the resource extraction 
issuer's reporting currency, as applicable, in one of three ways: (a) 
By translating the expenses at the exchange rate existing at the time 
the payment is made; (b) using a weighted average of the exchange rates 
during the period; or (c) based on the exchange rate as of the resource 
extraction issuer's fiscal year end. When calculating whether the de 
minimis threshold has been exceeded, a resource extraction issuer may 
be required to convert the payment to U.S. dollars, even though it is 
not required to disclose those payments in U.S. dollars. For example, 
this may occur when the resource extraction issuer is using a non-U.S. 
dollar reporting currency. In these instances, the resource extraction 
issuer may use any of the three methods described above for calculating 
the currency conversion. In all cases a resource extraction issuer must 
disclose the method used to calculate the currency conversion and must 
choose a consistent method for all such currency conversions within a 
particular Form SD filing.

Geographic Location Tagging

    (3) When identifying the country in which a government is located, 
a resource extraction issuer must use the code provided in ISO 3166 if 
available. When identifying the ``subnational geographic location of 
the project,'' as used in Item 2.01(a)(10), a resource extraction 
issuer must include the subdivision code provided in ISO 3166 if 
available and must also include sufficiently detailed additional 
information to permit a reasonable user of the information to identify 
the project's specific, subnational, geographic location. In 
identifying the project's specific location, resource extraction 
issuers may use subnational jurisdiction(s) (e.g., a state, province, 
county, district, municipality, territory, etc.) and/or a commonly 
recognized, subnational, geographic or geological description (e.g., 
oil field, basin, canyon, delta, desert, mountain, etc.). More than one 
descriptive term may be necessary when there are multiple projects in 
close proximity to each other or when a project does not reasonably fit 
within a commonly recognized, subnational geographic location. In 
considering the appropriate level of detail, resource extraction 
issuers may need to consider how the relevant contract identifies the 
location of the project.

Entity Level Disclosure and Tagging

    (4) If a government levies a payment obligation, such as a tax or a 
requirement to pay a dividend, at the entity level rather than on a 
particular project, a resource extraction issuer may disclose that 
payment at the entity level. To the extent that payments, such as 
corporate income taxes and dividends, are made for obligations levied 
at the entity level, a resource extraction issuer may omit certain tags 
that may be inapplicable (e.g., project tag, business segment tag) for 
those payment types as long as it provides all other electronic tags, 
including the tag identifying the recipient government.

Payment Disclosure

    (5) When a resource extraction issuer proportionately consolidates 
an entity or operation under U.S. GAAP or IFRS, as applicable, the 
resource extraction issuer must disclose its proportionate amount of 
the payments made by such entity or operation pursuant to this Item and 
must indicate the proportionate interest.
    (6) Although an entity providing only services to a resource 
extraction issuer to assist with exploration, extraction, processing or 
export would generally not be considered a resource extraction issuer, 
where such a service provider makes a payment that falls within the 
definition of ``payment'' to a government on behalf of a resource 
extraction issuer, the resource extraction issuer must disclose such 
payment.
    (7) ``Processing,'' as used in Item 2.01, would include, but is not 
limited to, midstream activities such as the processing of gas to 
remove liquid hydrocarbons, the removal of impurities from natural gas 
prior to its transport through a pipeline, and the upgrading of bitumen 
and heavy oil, through the earlier of the point at which oil, gas, or 
gas liquids (natural or synthetic) are either sold to an unrelated 
third party or delivered to a main pipeline, a common carrier, or a 
marine terminal. It would also include the crushing and processing of 
raw ore prior to the smelting phase. It would not include the 
downstream activities of refining or smelting.
    (8) A resource extraction issuer must disclose payments made for 
taxes on corporate profits, corporate income, and production. 
Disclosure of payments made for taxes levied on consumption, such as 
value added taxes, personal income taxes, or sales taxes, is not 
required.
    (9) Royalties include unit-based, value-based, and profit-based 
royalties. Fees include license fees, rental fees,

[[Page 49430]]

entry fees, and other considerations for licenses or concessions. 
Bonuses include signature, discovery, and production bonuses.
    (10) Dividends paid to a government as a common or ordinary 
shareholder of the resource extraction issuer that are paid to the 
government under the same terms as other shareholders need not be 
disclosed. The resource extraction issuer, however, must disclose any 
dividends paid in lieu of production entitlements or royalties.
    (11) If a resource extraction issuer makes an in-kind payment of 
the types of payments required to be disclosed, the resource extraction 
issuer must disclose the payment. When reporting an in-kind payment, a 
resource extraction issuer must determine the monetary value of the in-
kind payment and tag the information as ``in-kind'' for purposes of the 
currency. For purposes of the disclosure, a resource extraction issuer 
must report the payment at cost, or if cost is not determinable, fair 
market value and must provide a brief description of how the monetary 
value was calculated. If a resource extraction issuer makes an in-kind 
production entitlement payment under the rules and then repurchases the 
resources associated with the production entitlement within the same 
fiscal year, the resource extraction issuer must report the payment 
using the purchase price (rather than at cost, or if cost is not 
determinable, fair market value). If the in-kind production entitlement 
payment and the subsequent repurchase are made in different fiscal 
years and the purchase price is greater than the previously reported 
value of the in-kind payment, the resource extraction issuer must 
report the difference in values in the latter fiscal year (assuming the 
amount of that difference exceeds the de minimis threshold). In other 
situations, such as when the purchase price in a subsequent fiscal year 
is less than the in-kind value already reported, no disclosure relating 
to the purchase price is required.

Interconnected Agreements

    (12) The following is a non-exclusive list of factors to consider 
when determining whether agreements are ``operationally and 
geographically interconnected'' for purposes of the definition of 
``project'': (a) whether the agreements relate to the same resource and 
the same or contiguous part of a field, mineral district, or other 
geographic area; (b) whether the agreements will be performed by shared 
key personnel or with shared equipment; and (c) whether they are part 
of the same operating budget.

Section 3--Exhibits

Item 3.01 Exhibits

List below the following exhibits filed as part of this report:

    Exhibit 1.01--Conflict Minerals Report as required by Items 1.01 
and 1.02 of this Form.
    Exhibit 2.01--Resource Extraction Payment Report as required by 
Item 2.01 of this Form.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, 
the registrant has duly caused this report to be signed on its behalf 
by the duly authorized undersigned.

(Registrant)

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By (Signature and Title)*

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(Date)

*Print name and title of the registrant's signing executive officer 
under his or her signature.
* * * * *

    By the Commission.

    Dated: June 27, 2016.
Brent J. Fields,
Secretary.
[FR Doc. 2016-15676 Filed 7-26-16; 8:45 am]
 BILLING CODE 8011-01-P


