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23 Mar 2017

Nate Lankford, Richard A. Mojica & Quinnie Lin (Miller & Chevalier); Sue Millar & Jo Jones (Stephenson Harwood), on Law260

Analysis: 3 ways EU conflict minerals rule differs from US approach

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"3 Ways EU Conflict Minerals Rule Differs From US Approach", 20 Mar 2017

While the EU and U.S. regulatory regimes are similar in some respects, there are notable differences between the two in terms of their applicability to companies, geographic scope, and due diligence requirements. Here, we highlight three key ways in which the EU regulation will differ from the U.S. approach, which have important implications for companies using minerals potentially sourced from conflict-affected areas...(1) Narrower Applicability to Companies The EU regulation will cover a narrower set of companies than the U.S. rule...the proposed EU regulation will only apply to direct importers of 3TG into the EU, as well as smelters and refiners that process 3TG from "conflict-affected" and "high-risk" areas. Unlike the U.S. rule, the EU regulation does not require downstream manufacturers and sellers to engage in mandatory due diligence...(2) Potentially Broader Geographic Scope...the EU regulation may be more expansive geographically because it will apply to a yet undefined set of "conflict-affected" and "high risk" regions. According to the regulation, the EU Commission will select experts to provide an “indicative, non-exhaustive, regularly updated list of conflict-affected and high-risk areas.”...(3) Mandatory Due Diligence Without Preliminary Assessment...The EU regulation...does not require any threshold review prior to due diligence. If an importer is covered by the EU regulation, the importer must conduct due diligence on its suppliers using an independent third-party auditor. Similar to the U.S. rule, the EU regulation requires due diligence to be based on the OECD guidance...