U.S. Executive Order 13671 (“EO”) was adopted on 8 July 2014 with respect to potential conflict minerals in the supply chain of privately held corporations. In short, the July EO does not impose a new public reporting requirement on privately held corporations to disclose any conflict minerals that may be in the company’s supply chain. What it does do is impose possible U.S. sanctions against any persons (including any public or privately held corporations) that purchase conflict minerals from the Democratic Republic of Congo (“DRC”). So while private companies are still excluded from reporting on conflict minerals, the July EO would make it important for them to diligence its supply chain to ensure that they are not engaged in any “illicit trade in natural resources” of the DRC, which would possibly subject the company to U.S. sanctions.
Specifically, the July EO amends the prior Executive Order 13413 of 27 October 2006 to permit the Office of Foreign Asset Control (“OFAC”) to impose U.S. sanctions against any persons determined "to be responsible for or complicit in, or to have engaged in, directly or indirectly" in "(1) actions or policies that threaten the peace, security, or stability of the DRC…" and "…(7) support to persons, including armed groups, involved in activities that threaten the peace, security, or stability of the Democratic Republic of the Congo or that undermine democratic processes or institutions in the Democratic Republic of the Congo, through the illicit trade in natural resources of the Democratic Republic of the Congo" (emphasis added). There is no definition of “natural resources” in the OFAC laws, regulations, and guidance under the DRC sanctions program or other sanctions programs. However, a dictionary definition of “natural resources” would suggest that companies that purchase conflict minerals from the DRC could fall under this provision.
The scope of the sanctions include blocking property, interests in property, and the transfer, payment, exportation, withdrawal, or dealing of property or interests in property to sanctioned persons. Under 31 CFR 547.308, the terms property and property interest include, but are not limited to, money, checks, drafts, bullion, bank deposits, savings accounts, debts, indebtedness, obligations, notes, guarantees, debentures, stocks, bonds, coupons, any other financial instruments, bankers' acceptances, mortgages, pledges, liens or other rights in the nature of security, warehouse receipts, bills of lading, trust receipts, bills of sale, any other evidences of title, ownership or indebtedness, letters of credit and any documents relating to any rights or obligations thereunder, powers of attorney, goods, wares, merchandise, chattels, stocks on hand, ships, goods on ships, real estate mortgages, deeds of trust, vendors' sales agreements, land contracts, leaseholds, ground rents, real estate and any other interest therein, options, negotiable instruments, trade acceptances, royalties, book accounts, accounts payable, judgments, patents, trademarks or copyrights, insurance policies, safe deposit boxes and their contents, annuities, pooling agreements, services of any nature whatsoever, contracts of any nature whatsoever, and any other property, real, personal, or mixed, tangible or intangible, or interest or interests therein, present, future or contingent.
The penalties for violation of U.S. sanctions laws and regulations can include civil penalties and criminal penalties, including possible prison time. A fact sheet released by the White House states that one of the purposes for the new July EO is "to allow for more U.S. flexibility in targeting persons contributing to the conflict in the DRC." This flexibility can potentially include targeting companies (both public and private) engaging in trade of conflict minerals.
Reporting on conflict minerals in a company’s supply chain and complying with OFAC regulations are two separate obligations. As an illustration: some public companies subject to the SEC’s conflict minerals reporting ran into headaches earlier this year when they filed their Conflict Minerals Reports because they disclosed that their manufactured products possibly contained raw materials sourced from North Korean smelters. While these companies satisfied their reporting obligations with the SEC, their disclosure suggested that they may have violated US sanctions because companies are prohibited from importing any material from North Korea into the United States.