Oxfam America Inc. Demands SEC Action in Energy Payment Rule Case

Oxfam America Inc. (“Oxfam”), an anti-poverty group, submitted a memorandum in reply to the SEC’s summary judgment opposition. In the memorandum, Oxfam asks the U.S. District Court for the District of Massachusetts to reject the SEC’s contention that a Dodd-Frank rule requiring oil, gas and mineral companies to report payments to foreign governments would be too complex to finish this year.

The Oxfam suit, filed in September 2014, seeks to compel the agency to implement Section 1504 of Dodd-Frank.

According to the memorandum, the SEC’s argument against the enforcement of the mandate takes two forms: (i) that the SEC “is busy,” and (ii) that the SEC “has already tried, but failed, to meet that mandate.” According to Oxfam, “neither agency convenience nor agency preference percolates upwards to nullify a statutory command.”

Oxfam stated that the issues raised by the rulemaking are “not particularly complex,” and that the SEC “overstates the task before it.” Additionally, Oxfam said that by failing to meet the Congressional deadline for a rulemaking, the SEC is in violation of Section 706(1) of the Administrative Procedure Act.

Oxfam requested that the court grant a summary judgment in favor of Oxfam and enter an order requiring the SEC to (i) issue a proposed rule within 30 days of the issuance of the summary judgment or on August 1, 2015, (ii) open a 45-day period for public notice and comment, and (iii) promulgate a final rule within 45 days after the end of this period, no later than November 1, 2015.

Lofchie Comment: Congress habitually requires the SEC and other agencies to adopt rules that have timetables that are impossible to meet. For example, most Dodd-Frank deadlines fit in this category. It is hard to imagine on what basis a court could require the SEC to proceed with the adoption of this particular rule when so many other rules are well past their legislative “deadlines.”

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