November 4, 2011
Re: Proposed Rules on Conflict Minerals Release No. 34-63547; File No. S740-10, RIN 3235-AK84
Dear Secretary Murphy:
I am a citizen and consumer. I would like to thank the Commission for holding its roundtable about conflict minerals on October 18 and appreciate the challenge that the SEC faces in this rulemaking.
Some of the industry comments that day concerned me. I understand their interest in avoiding undue costs, but I am confident that they can rise to the challenge of increasing transparency in their supply chains to reduce the chances of supporting conflict in the Congo and adjoining countries. I also believe that in order to advance the rulemaking discussion, it would be appropriate for industry groups or individual companies to offer to the Commission timelines and specific proposals to achieve the statutory goals of Section 1502.
I also would like to draw the Commission's attention to an administrative law review article about reflexive law, which involves regulations and legal standards that push private companies to internalize social goals and adopt them as their own and to creatively self-manage their operations in order to promote higher achievement of those goals. The article citation is 62 Admin. L. Rev. 1063. Although it focuses on green business, I believe that the concepts could be useful in this context, particularly to address the "either-or" question of phasing in the requirements or full implementation from the outset.
One of the roundtable participants suggested creating a third category for "unable to determine" conflict status. I urge the Commission to reject this proposal, as I believe that it would eviscerate the goal of the statutory provision. If companies are not compelled by law to investigate and determine the conflict status of their purchases, I doubt that they will undertake the efforts necessary to do so. Instead, I expect that a large number will take this option to avoid both legal consequences of an errant disclosure of conflict-free status and potential negative publicity of a disclosure indicating use of conflict minerals.