United States: SEC Rules For Resource Extraction Issuers Could Lead To Increased FCPA Scrutiny, Disclosures

Lara Covington is a Partner in our Washington D.C. office and Lisa Prager is a Partner in our New York office


  • New rules issued by the U.S. Securities and Exchange Commission (SEC) require resource extraction issuers to disclose payments made to U.S. and foreign governments for the commercial development of oil, natural gas or minerals.
  • An immediate effect of the rules will be to create a mandatory disclosure requirement for certain payments – namely, those made to governments that are intended to benefit individual foreign government officials – that have traditionally fallen under the Foreign Corrupt Practices Act (FCPA) and have not been subject to a mandatory disclosure requirement. Another related corollary is a likely increase in voluntary FCPA disclosures and FCPA investigations.
  • The rules go into effect on Sept. 26, 2016, and must be complied with for fiscal years ending on or after Sept. 30, 2018.

New rules issued by the U.S. Securities and Exchange Commission (SEC) that require resource extraction issuers to disclose payments made to U.S. and foreign governments for the commercial development of oil, natural gas or minerals will go into effect on Sept. 26, 2016. The rules are intended to advance the U.S. foreign policy objective of combatting global corruption, promoting accountability and improving governance in resource-rich countries around the world. One immediate effect of the rules, however, will be to create a mandatory disclosure requirement for certain payments – namely, those made to governments that are intended to benefit individual foreign government officials – that have traditionally fallen under the Foreign Corrupt Practices Act (FCPA) and have not been subject to a mandatory disclosure requirement. Another related corollary is a likely increase in voluntary FCPA disclosures and FCPA investigations.


Section 13(q), which was added in 2010 to the Securities Exchange Act of 1934 (Exchange Act) by Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), directs the SEC to issue rules requiring resource extraction issuers to include information relating to any payment made by the issuer or its affiliates to the U.S. and foreign governments for the purpose of commercial development of oil, natural gas, or minerals in an annual report. The rules were intended to increase the transparency of payments made by oil, natural gas, and mining companies, which would help deter those companies from entering into suspicious or corrupt transactions, combat global corruption, and empower citizens of resource-rich countries to hold their governments accountable for the wealth generated by those resources.

The SEC initially adopted Rule 13q-1 in August 2012, but re-proposed the rules on Dec. 11, 2015.2 On June 27, 2016, the SEC published notice of the final rules and amendments to Form SD (Rule 13q-1 or the rules), which must be complied with for fiscal years ending on or after Sept. 30, 2018.3

Notably, in recent years, the European Union (EU Accounting Directive and EU Transparency Directive), Canada (the Extractive Sector Transparency Measure Act) and the Extractive Industries Transparency Initiative (EITI)4 adopted initiatives similar to the rules the SEC adopted.

Types of Payments Subject to Disclosure

Rule 13q-1 requires resource extraction issuers to disclose payments made to any government and file annual reports on Form SD with the SEC under the Exchange Act. "Resource extraction issuers" includes all U.S. and foreign companies that are required to file annual reports pursuant to Section 13 or 15(d) of the Exchange Act and are engaged in the commercial development of oil, natural gas or minerals. Such "commercial development" is defined as exploration, extraction, processing and export, or the acquisition of a license for any such activity.

The reporting requirements extend to payments made by any subsidiary or affiliate entity included in a reporting company's consolidated financial filings. The term "payment" includes taxes; royalties; fees, including licensing fees; production entitlements; bonuses; dividends; payments for infrastructure improvements; in-kind payments; and if required by law or contract, community and corporate social responsibility payments. "Not de minimis" is defined as any payment, whether a single payment or a series of related payments, that equals or exceeds $100,000 during the same fiscal year.

Rule 13q-1 also includes an anti-evasion provision that requires disclosure for payments that are not within one of the payment categories but are related to the commercial development of oil, natural gas or minerals, or are payments made by a resource extraction issuer to a government for the purpose of such commercial development.

Information Required to be Disclosed and Exemptions

The rules require the following information about the payments to governments:

  • the type and total amount of 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 category
  • 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 government that received the payments and the country in which the government is located
  • the project of the resource extraction issuer to which the payments relate
  • the particular resource of the commercial development
  • the subnational geographic location of the project

"Project" is defined as operational activities that are governed by a single contract, license, lease, concession or similar legal agreement that forms the basis for payment liabilities with a government.

Rule 13q-1 includes two exemptions: The first allows an issuer that acquired a company, which was not previously subject to the final rules, to delay reporting payment information for the acquired company until the first fiscal year following the acquisition, and the second provides a one-year delay in reporting payments related to exploratory activities. Furthermore, the final rules permit the SEC to provide relief from the requirements of the rules on a case-by-case basis.

The Impact of Rule 13q-1

Mandatory Disclosure for Certain Payments Subject to FCPA

Rule 13q-1's anti-evasion provision, in effect, creates a mandatory disclosure requirement for certain payments traditionally within the ambit of the FCPA – i.e., payments to governments that also provide a benefit to individual foreign government officials. The FCPA prohibits corrupt payments to foreign officials and political parties for the purpose of obtaining or retaining business, securing an improper business advantage, or influencing or inducing an official act by the official or political party.5 The FCPA is targeted at corrupt payments to individuals, not governments, and does not include a mandatory disclosure provision.

The anti-evasion provision at Rule 13q-1(b) requires 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.6 Payments to the government that are routed through third parties are thus covered. Additionally, the SEC explicitly stated that certain payments that could "reasonably raise corruption concerns" – such as "payments for government expenses, providing jobs or tuition to persons related to government officials, [and] investing in companies created by officials or related persons" – would be covered by the anti-evasion provision if made to further the commercial development of oil, natural gas or minerals.7 In doing so, the SEC cited to a U.S. Senate Subcommittee investigation of six oil companies active in oil exploration and development efforts in Equatorial Guinea (EG), which found, among other things, that the companies made payments to the EG Government for "student training expenses."8 The expenses consisted in many cases of paying tuition and living expenses for the children of EG officials either directly to a bank account controlled by the EG Government or directly to universities.

Payments to governments made in furtherance of the commercial development of oil, natural gas or minerals that benefit individual government officials meet the requirements of prohibited payments under the FCPA provided such payments are made with the intent to influence the officials. Assuming such payments are made (whether directly or through third parties), the anti-evasion provision of Rule 13q-1 requires disclosure for this subcategory of payments that would otherwise not be subject to a mandatory disclosure requirement under the FCPA. Failure to disclose the payments would subject resource extraction issuers to penalties for violating Section 18(a) of the Exchange Act and other provisions.

Increase in Voluntary FCPA Disclosures

Complying with Rule 13q-1 may also compel more companies to voluntarily disclose FCPA violations. This phenomenon is not new; other U.S. regulatory regimes have had the effect of compelling companies to voluntarily disclose potential FCPA violations. For example, several FCPA actions have involved Part 130 of the International Traffic in Arms Regulations (ITAR), which requires the disclosure of fees and commissions related to brokering the sale of defense materials. The failure to disclose these fees, to the extent they are also part of a corrupt scheme, can lead to criminal penalties and possibly a loss of export privileges. With such steep consequences and the likelihood that disclosure of the fee could lead to detection, companies are compelled to disclose not only the fee but the related corruption. For example, in 2015, FLIR Systems Inc. (FLIR) settled with the SEC for providing gifts and hospitality to Saudi officials to retain business with the Saudi Arabia Ministry of Interior (MOI).9 The case involved third party agents, who were paid a commission on the sales to the MOI. After a dispute over the amount of commissions due, the agents submitted a claim to the company, which triggered an internal investigation. Ultimately, the company discovered that the commissions had not previously been reported as required under ITAR Part 130, and, consequently, disclosed both the commissions and the related FCPA issues. FLIR settled with the SEC for $9,504,584 in disgorgement and prejudgment interest, and a civil money penalty.

Increase in FCPA Investigations

Rule 13q-1 may not only trigger internal FCPA investigations that lead to voluntary or mandatory disclosure by the reporting companies, but it may also lead to external parties, such as FCPA enforcement agencies, using the disclosures to investigate possible corruption.

Rule 13q-1, like its sister regulation for conflict minerals at Rule 13(p), is aimed at detecting and preventing corruption, and is thus a natural source of evidence for FCPA enforcement agencies. Last year, the FBI's International Corruption Unit apparently indicated that it sees linkages between conflict mineral reporting compliance and the FCPA, presumably because both involve issues of corruption and are seen in "low integrity countries."10 Similarly, the oil, gas and mining industry has historically involved a high level of corruption. Indeed, in issuing Rule 13q-1, the SEC noted that the U.S. Senate Subcommittee Investigation reported instances in which, "both at the direction of government officials of Equatorial Guinea and pursuant to suspect terms of the underlying contracts with the government, resources extraction companies diverted payments that should have been paid to the government to other accounts and to persons connected with E.G. government officials."11 The Rule 13q-1 disclosures, therefore, could provide substantive leads to U.S. enforcement authorities, many of which have been increasing their prosecutorial and investigative resources. Of course, increased scrutiny was an intended consequence. In issuing Rule 13q-1 and defending the decision to require project-level reporting, the SEC explained that such data could help "citizens, civil society groups, and others to identify payment discrepancies that reflect potential corruption and other inappropriate financial discounts" (emphasis added).12

For Royal Dutch Shell, the first company to report under The Reports on Payments to Governments Regulations 2014 in the United Kingdom, a civil society group has already raised questions about the contents of its report.13 A review of the Royal Dutch Shell report by the organization Publish What You Pay revealed that the value of an in-kind production entitlement payment to the Nigerian government for the SPDC East project ($20.89 per barrel) was less than half of the average values for other Nigerian payments in kind ($51.59 per barrel). There are likely many legitimate explanations for this discrepancy, but for a zealous investigator, it might be just enough to launch an inquiry into how the in-kind payment got valued and whether the official in charge of the SPDC East project was improperly influenced to accept a lower value.

Payments made through third parties, particularly corporate and social responsibility (CSR) payments, are also likely to be examined. Since 2010, every bribery scheme that resulted in an FCPA settlement has included a third-party intermediary; as a result, third-party payments are regularly investigated by U.S. enforcement agencies.14 CSR payments, in particular, are often made through third parties, such as foundations or charities. In some instances, though they are required by contract or law, the CSR payments are simply "a mechanism for the corrupt or suspicious diversion of payment revenues to government officials for their personal use."15 To the extent there is corruption involved with a project, the disclosure of these payments will provide investigators with information that could lead to the detection of such corruption.

Increase in Anti-Corruption Compliance

Anytime a company is subject to increased regulatory scrutiny, increased compliance is likely to follow. As the SEC noted in issuing Rule 13q-1, reporting project-level data related to payments to governments "may also discourage companies from either entering into agreements that contain suspect payment provisions or following government officials' suspect payment instructions."16 Indeed, it will also encourage companies to scrutinize payments to third parties that may need to be reported under the anti-evasion provision. To the extent Rule 13q-1 goes into effect, therefore, resource extraction issuers would be wise to shore up existing corruption compliance policies and procedures, including auditing the projects involving payments to governments, reviewing any third-party relationships related to those projects and investigating any other red flags raised during the report preparation.


1 Special thanks to Libby Bloxom for her assistance with this alert.

2 In July 2013, the U.S. District Court for the District of Colombia vacated the rules after industry groups and the U.S. Chamber of Commerce challenged them. Following a suit by Oxfam America Inc. filed in 2014, the U.S. District Court for the District of Massachusetts ordered the SEC to file an expedited schedule for the adoption of the final rule. The SEC re-proposed the rules and form amendments on Dec. 11, 2015. See Disclosure of Payments by Resource Extraction Issuers, 80 Fed. Reg. 80057(proposed Dec. 11, 2015) (to be codified at 17 C.F.R. Parts 240 and 249b).

3 See Disclosure of Payments by Resource Extraction Issuers, 81 Fed. Reg. 49359 (June 27, 2016) (to be codified at 17 C.F.R. Parts 240 and 249b).

4 The Extractive Industries Transparency Initiative is a voluntary coalition of oil, natural gas and mining companies; foreign governments; investor groups; and other international organizations dedicated to improving transparency and accountability in resource-rich countries.

5 See 15 U.S.C. §§78dd-1, 78dd-2, 78dd-3, 78m, 78ff (1998).

6 Disclosure of Payments by Resource Extraction Issuers, 81 Fed. Reg. at 49,375.

7 Id. at 49,374.

8 Id. at 49,274 n.213.

9 See In the Matter of FLIR Systems, Inc., File No. 3-16478 (SEC, Apr. 8, 2015).

10 See Elm Sustainability Partners LLC, Three More Letters to Add to Your Conflict Minerals Lexicon – FBI(Oct. 2, 2015).

11 Disclosure of Payments by Resource Extraction Issuers, 81 Fed. Reg. at 49,379 n.281.

12 Id. at 49,379.

13 See Miles Litvinoff, Shell reports 2015 payments to governments using open data(June 3, 2016).

14 See Foreign Corrupt Practice Act Clearinghouse, Statistics & Analytics – Charts & Graphics – Intermediaries.

15 Disclosure of Payments by Resource Extraction Issuers, 81 Fed. Reg. at 49,373 n.207.

16 Disclosure of Payments by Resource Extraction Issuers, 81 Fed. Reg. at 49,379.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Holland & Knight
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Holland & Knight
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions