NAM et al have filed their reply brief in the conflict minerals emergency stay hearing.  Highlights, many of which are not new points, are:

  • The rule must be vacated because it cannot function sensibly without the stricken provision.  The rule’s remaining requirements fail to enable anyone to distinguish between issuers using minerals from mines controlled by armed groups and those using minerals from other mines.  “Only the confession requirement connects issuers to conflict. The rest of the Rule does not.”
  • Citing the severability language is not enough.  “It remains for the Court to determine whether such intent is rational.”  A severability provision is not even conclusive of intent.
  • The argument that unrecoverable compliance costs – no matter how large – can never constitute irreparable harm proves too much.  Otherwise any agency could adopt a rule without notice and comment and a stay would be impossible, regardless of expense incurred.