The specific obligation of the Conflict Mineral Rule is to gather information about the use and source of 3TG in products and report to the SEC (and on the organization's website). As with other significant regulations with a far reach (e.g., Sarbanes Oxley), there is a lot of confusion out of the gates. This includes misconceptions and failure to scope a program that will stand the test of time.
Organizations are best served to define a supplier GRC program and framework to address Conflict Mineral Rule requirements that will be effective today and into the future. The goal is to establish a process that meets or exceeds requirements and reduces risk exposure in a dynamic and distributed business environment. A successful supplier GRC program that addresses conflict mineral requirements is:
- Effective. Organizations need the program to be effective in meeting requirements as well as reduce risk exposure to the organization.
- Efficient. Developing processes that are efficient reduces both financial and human capital costs in meeting requirements and governing supplier relationships.
- Agile. Organizations require agility in supplier governance as it operates in an ever-changing business environment – regulations and requirements change, the business itself changes and new products are developed, and the supply chain is in a constant state of change.
To be effective, efficient, and agile in supplier governance with a focus on conflict mineral compliance program requires a framework that has the following elements supported by process and technology:
- Ownership. At the end of the day someone needs responsibility to ensure that the conflict mineral compliance program is functioning and meeting the obligations and reducing risk exposure. This role needs executive sponsorship, as the organization will have to certify the reports it submits putting the executives and board on the line in regards to their fiduciary responsibilities.
- Collaboration. While the organization needs someone to lead the conflict mineral compliance program to ensure that it is both designed and operating properly, there are many departments and roles that need to be involved in the program. This includes supply-chain management, procurement, corporate compliance & ethics, legal, risk management, business operations, and audit. A cross-functional committee of roles and departments involved should be established to ensure that everyone is on board and working as a team.
- Policies, Procedures, & Training. The cornerstone of any compliance program is policy. In the case of conflict minerals this starts with the organizations code of conduct with a statement regarding the organization's ethics and values in relation to human rights within its operations and across supply-chain and third party relationships. This gets reflected in the supply-chain code of conduct that suppliers have to acknowledge and adhere to. Further detail on expectations, boundaries, and responsibilities is spelled out in related policies and procedures. Training is critical both internally to the organization as well as with the supply-chain so that everyone is on board and understands what is expected of them. Suppliers need to be informed of expectations and obligations as well as understand the process for compliance.
- Understand the organization's products. Product filtering is the cornerstone task for making conflict mineral compliance effective, efficient, and agile. The organization needs to catalog its products and the materials used and determine which ones contain 3TG. This is done to define the scope of the detailed assessment and reporting requirements. Proper scoping of products impacts the effectiveness and efficiency of the program as the organization has to track down the source of 3TG that are used in them. Scoping products correctly directly impacts the organization and suppliers burden in compliance.
- Assessment. The majority of conflict mineral compliance work is in the assessment process. Here the organization compiles self-assessment surveys/questionnaires to send to its suppliers. Each supplier that is involved with 3TG minerals in products needs to be sent a self-assessment survey to attest to the use and source of 3TG in those products. The challenge for organizations is to drill down deep into the supply-chain to get to the smelter and mine that the minerals came from. Organizations can send self-assessments to their direct suppliers and then require that these suppliers send self-assessments to their downstream suppliers until the original country and source of the mineral is discovered. Or the organization can insist that their suppliers inform the organization of their downstream suppliers and the organization can send assessments itself down into the depths of the supply chain. This becomes a tricky area to navigate: at many points the organization may have to rely on the attestation and information provided by suppliers finding it difficult to navigate past them to the source of the minerals. The key is to keep a watch for inaccurate and misleading information. Intelligence, intuition, and insight are needed to ensure that the organization has taken 'reasonable' steps to identify the source of conflict minerals.
- Due Diligence. If the organizations determines that 3TG in products is sourced from DCR or adjoining countries the next step is due diligence. The due diligence expectation is to determine if the minerals sourced from these countries are connected with armed militias. The organization needs to determine how the minerals are moved and controlled. It is expected that the organization will have to put greater oversight and control over the logistics of minerals from these countries to ensure that these groups do not profit militias known for crimes against humanity.
- Audit. An important element of conflict mineral compliance is the requirement to have the Conflict Mineral Report audited. Organizations need to leverage their own internal audit staff to ensure the integrity of the report, information collected, and the process for compliance. However, the requirement is to have the report audited by an external auditor. The goal of internal audit is to provide assurance and find issues for the organization to resolve before it gets to the external auditor. Both internal and external audit will need complete access to assessments and due diligence efforts to conduct their audits. Onsite inspections of suppliers should also be expected.
- Reporting. The primary deliverable of conflict mineral compliance is the disclosure forms that are reported to the SEC and put on the organizations website. At a minimum organizations have to file a Form SD. Organizations that have to go further and develop a Conflict Mineral Report to accompany Form SD are those that cannot provide reasonable assurance that 3TG is conflict free and have to go beyond reasonable inquiry to suppliers to a structured due diligence process that is audited. This requires the integration and analysis of all the previous collected information so that the organization can build these reports and executives can attest to accuracy.
- Remediation. The end game of conflict mineral regulation is to reduce the use of 3TG sourced from facilities connected to human rights violations and bring greater awareness to human rights violations connected to the militias involved with mines and smelters in the region. When issues are found, the organization is to work through the supply chain to remove these facilities and cut off funds to militia groups in the region of the DRC and their crimes against humanity.