Extractive Industries Transparency (US0083)
Action Plan: Not Attached
Action Plan Cycle: 2015
Lead Institution: NA
Support Institution(s): NA
Policy AreasExtractive Industries
Since the launch of the Open Government Partnership, the Administration has been committed to implementing the Extractive Industries Transparency Initiative (EITI), an international standard aimed at increasing transparency and accountability in the payments companies make and the revenues governments receive for their natural resources. The United States continues to work toward fully complying with the EITI standard, including publishing the first United States EITI report in 2015, and to achieve EITI compliance no later than 2017.
IRM Midterm Status Summary
For details of these commitments, see the report: https://www.opengovpartnership.org/sites/default/files/United-States_Mid...
IRM End of Term Status Summary
Commitment 31. Transparency of Extractive Industries
Implement the Extractive Industries Transparency Initiative
Since the launch of the Open Government Partnership, the Administration has been committed to implementing the Extractive Industries Transparency Initiative (EITI), an international standard aimed at increasing transparency and accountability in the payments companies make and the revenues governments receive for their natural resources. The United States continues to work toward fully complying with the EITI standard, including publishing the first United States EITI report in 2015, and to achieve EITI compliance no later than 2017. The United States will also:
- Work with the EITI Multi-Stakeholder Group (MSG) to define tiers of subnational engagement, including working with state and tribal governments to formally nominate representatives as members of the MSG and encouraging enhanced integration of state and tribal information into U.S. EITI reporting;
- Create and implement a process to conduct stakeholder outreach and assessment of issues related to disclosure of forestry revenues; and
- Continue implementing project-level reporting and satisfy the beneficial ownership requirements consistent with the relevant provisions under the EITI standard.
Responsible Institutions: Department of Interior, Department of State
Supporting Institution: EITI Multi-Stakeholder Group (MSG)
Start Date: Not Specified End Date: Not Specified
This commitment aimed to implement the Extractive Industries Transparency Initiative (EITI) in the United States by:
- Defining tiers of subnational engagement, including nominating state and tribal officials as members of the EITI Multi-Stakeholder Group (MSG) and encouraging reporting of state and tribal information as part of US EITI reporting practices;
- Creating and implementing a stakeholder outreach and assessment process for the disclosure of forestry revenues; and
- Implementing project-level and beneficial ownership reporting under the EITI Standard.
It is worth noting that in September 2016, the US government released a new commitment related to EITI that focused on supporting capacity-building for extractives transparency. For more details about that commitment, please see the analysis under Commitment 51. Support Capacity Building for Extractives Transparency.
As described in the progress report, the government had made limited overall progress on this commitment by the midterm.
Regarding subnational EITI engagement, in June 2016 the US Extractive Industries Transparency Initiatives (USEITI) submitted a plan on subnational engagement with the MSG to the EITI’s International Secretariat stipulating an opt-in reporting process for subnational disclosure of extractive sector revenues, resulting in substantial completion for Milestone 31.1. Three out of 33 resource-producing states had opted in to the reporting process by the end of the midterm reporting period.
To bring forestry revenues under the EITI initiative, the USEITI held an initial meeting to discuss a stakeholder outreach and issue assessment process focused on this issue in March 2016. However, the USEITI had not designed or implemented a formalized process by the close of the midterm reporting period, resulting in limited completion for Milestone 31.2.
As for reporting on project-level disclosures and beneficial ownership under the EITI Standard, the USEITI MSG committed to including company-level information in its 2016 EITI Report, with the report’s publication pending at the midterm. Relatedly, the US Securities and Exchange Commission (SEC) adopted a revised version of Section 1504 of The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (124 Stat. 1376 or “Dodd Frank 1504”) mandating project-level disclosure of extractive sector companies’ payments to governments on 27 June 2016. However, the IRM researcher observed no progress with respect to requirements surrounding the disclosure of beneficial ownership information under the USEITI. Moreover, while company-level disclosures brought the USEITI closer to reporting at the project-level, each company could have multiple “projects,” such that company-level reporting was not sufficient to satisfy that aspect of the milestone. Nonetheless, it is important to mention that the rule requiring beneficial ownership disclosure applied only to fiscal years ending on or after 30 September 2018.
End of term: Limited
Despite the government’s substantial completion of Milestone 31.1, this commitment has a limited completion at the end of term due to the limited progress made on Milestones 31.2 and 31.3.
No additional states were observed to opt-in to the subnational reporting process by the close of the end-of-term reporting period (Milestone 31.1).
The IRM researcher observed no additional progress on creating a process for disclosing forestry revenues (Milestone 31.2). The USEITI’s 2017 Work Plan, published in November 2016, states that one of the USEITI’s goals for 2017 was to “discuss a process for the inclusion of forestry or other commodity in future USEITI reports,” implying that the USEITI had not formalized a process for doing so by late 2016. No additional action was taken by the close of the end-of-term reporting period. Completion for this milestone therefore remains limited.
With respect to Milestone 31.3, on 16 November 2016, the Department of the Interior officially announced the release of the USEITI’s second annual report. As agreed by the MSG at its December 2016 meeting, the report is comprised of an extensive Executive Summary of the Report, as well as information on the Online Data Portal. The MSG endorsed the 2016 USEITI report—including the online report, executive summary, and appendix—at its November 2016 meeting.
On the issue of project-level reporting, the Executive Summary notes, with reference to Dodd-Frank Section 1504, that “USEITI reporting will satisfy disclosure requirements under the rule for applicable companies.” However, as Dodd-Frank 1504 did not require companies to begin disclosing payments to governments until 150 days after the conclusion of their respective fiscal year 2018, no such reporting occurred under the USEITI’s second annual report. This is confirmed by the available sections of the report (specifically the Executive Summary and the Data sections of the USEITI website), which report data on company-level payments but not project-level payments.
Separately, on 14 February 2017, President Trump signed House Joint Resolution 41, which effectively revoked the SEC rule on project-level disclosures implementing Dodd-Frank 1504, and therefore eliminated the requirement that extractive companies disclose project-level information on payments to governments. The removal of this requirement effectively undid the limited progress made on this aspect of Milestone 31.3 at the midterm.
However, while the available sections of the USEITI’s second annual report do not include beneficial ownership disclosures, they do note that “the new [EITI] Standard requires that implementing countries produce a roadmap for disclosing beneficial ownership by 2017, with full compliance by 2020.” In line with this requirement, the USEITI publicly released the aforementioned roadmap in November 2016. The roadmap outlines the steps required to begin reporting on beneficial ownership, and references a customer due diligence rule issued by the US Treasury Department in May 2016 that requires ownership disclosures for account-holders at certain US financial institutions at the time of account creation (the subject of Commitment 30) as helping to facilitate this process. The IRM researcher considers the roadmap’s publication as resulting in limited completion for this milestone, despite the reversal in progress on satisfying project-level reporting requirements.
Did It Open Government?
Access to Information: Worsened
In March 2017, the Department of the Interior (DOI) confirmed that it had halted efforts to seek validation under the EITI standard. DOI later published a formal letter on 2 November 2017 withdrawing the United States as an EITI-implementing country, noting somewhat vaguely that “the domestic implementation of EITI does not fully account for the US legal framework.” Though there were not many details in the letter, the US Annual EITI Progress Report for 2016 highlighted several potential legal obstacles to EITI implementation, such as provisions of the Trade Secrets Act and the Internal Revenue Code that limit the information the government can legally disclose. The withdrawal letter goes on to affirm that the United States will continue to engage with EITI as a Supporting Country, indicating that it will support good extractive sector governance more generally. Its withdrawal as an Implementing Country effectively eliminates the government’s commitment to publish EITI reports and seek validation against the EITI Standard.
The EITI Chair noted in the aftermath of the US withdrawal, “this is a disappointing, backwards step. The EITI is making important gains in global efforts to address corruption and illicit financial flows. Our work supports efforts to combat transnational crime and terrorist financing. It’s important that resource-rich countries like the United States lead by example. This decision sends the wrong signal.” The Natural Resource Governance Institute (NRGI), a leading think tank in the resource governance space, has similarly noted that “US withdrawal from EITI represents further backsliding by the US government in its once-pioneering commitment to transparency and accountability in the extractive sector, both nationally and globally.” Thus, while the government did make progress during the assessment period by formalizing the subnational reporting opt-in process under Milestone 31.1, this progress is outweighed by the US withdrawal from EITI as an Implementing Country.
It is nonetheless important to note that there has been no loss of public information on extractives to date. The Department of the Interior pointed out that it has committed to institutionalize the principles of EITI and has continued to both maintain and update the extractives data available on its Natural Resources Revenue Data portal. The list of updates to this portal confirm that DOI continues to actively update the site with the latest revenue payments by commodity, revenue stream and company.
While the public will continue to have access to updated extractives data, the US withdrawal from EITI nonetheless constitutes backsliding. In particular, one of the essential features of EITI is its multi-stakeholder governance. The loss of the MSG—which includes representatives from government, civil society, and the private sector—is a notable regression. In response to a request for comment by the IRM researcher, a Senior Governance Officer at NRGI noted that since the US withdrawal, meetings of the MSG have been “postponed indefinitely” and the “US-EITI working groups are not meeting,” contributing to “bad faith” on the part of industry and the US government toward EITI, with a member of a civil society organization whose work pertains to extractive sector governance adding that “the work of the MSG has unfortunately been wasted.”
Moreover, there will no longer be an independent reconciliation and validation against the EITI standard. While DOI notes that this process is largely redundant to the mature audit and verification processes in the United States, the third-party audit lends further credibility to the information disclosed and, more importantly, establishes a strong mechanism for accountability. For these reasons, and despite the public’s ongoing access to US extractives data, the IRM considers that DOI halting efforts to seek validation under the EITI standard during the action plan period constitutes a worsening of the status quo.
At the time of writing, the US government had not published its fourth national action plan, but given the Trump Administration’s decision to no longer implement the EITI standard, this commitment will most likely not be carried forward. The USEITI should nevertheless explore opportunities to support the disclosure of project-level reporting in the absence of Dodd-Frank 1504, and more importantly, explore opportunities to report unilaterally on extractive sector revenues beyond the EITI, such as by maintaining and updating the Department of the Interior’s existing resource revenue data portal. Collectively, these two issues remain areas of particular concern for civil society stakeholders whose work concerns the extractive sector, with such organizations as the EITI, the Natural Resource Governance Institute, Oxfam America, and Publish What You Pay strongly expressing their concerns about the SEC rule’s repeal, as well as broader concerns over the US withdrawal as an EITI Implementing Country.
Collectively, the comments from civil society organizations on the US withdrawal from the EITI initiative speak to the importance of this commitment in the eyes of civil society and demonstrate a clear demand for the United States to consider returning to the EITI as an Implementing Country.
 During the pre-publication review of this report, the Department of the Interior (DOI) noted that the EITI Board actually scheduled the validation of the United States for April 2018, not 2017. Given that the commitment text is taken directly from the action plan, it cannot be revised. However, it is important to clarify how the validation process works. To achieve validation, a Board-appointed Independent Validator assesses the initial validation review of the International Secretariat and submits a report to the Board assessing the country’s compliance with each aspect of the Standard. Afterward, the Board’s Validation Committee makes a recommendation on the country’s compliance to the Board, which makes the ultimate determination on validation and provides recommendations for corrective actions. This final determination is therefore not a pass/fail decision, but rather a determination of the degree of progress in achieving compliance. DOI sent this information to the IRM via a comment during the pre-publication review of this report. The comment was submitted via e-mail on 30 April 2018.
 The MSG is a country-specific EITI-focused body whose members are drawn from government officials, companies, and civil society. According to the EITI, “the MSG is the main decision-making body responsible for setting objectives for EITI implementation linked to wider national priorities in the extractive sector, producing EITI Reports, and ensuring that the findings contribute to public debate and get turned into reforms.” See EITI. “Multi-Stakeholder Governance: The Power of Three.” https://eiti.org/oversight. Consulted 25 June 2017.
 EITI. “The EITI Standard.” https://eiti.org/standard/overview. Consulted 25 June 2017. See also EITI. “Validation.” https://eiti.org/validation. Consulted 25 June 2017; and EITI. “Moving from Compliant to Candidate Country.” https://eiti.org/about/how-we-work#moving-from-candidate-to-compliant-country. Consulted 25 June 2017.
 The USEITI is a US government body responsible for all aspects of EITI membership in the United States.
 USEITI. “Update to the International Secretariat: Subnational Payments.” Available at: https://www.doi.gov/sites/doi.gov/files/migrated/eiti/FACA/upload/USEITI-Subnational-Opt-In-Position-Piece-5-6-15-cleandrft.pdf. Consulted 25 June 2017. Note that there is some confusion regarding the proposal date for these guidelines. The “Update” itself appears to date from 6 May 2015. However, the US government’s own Midterm Self-Assessment Report dates these guidelines to June 2016. See Open Government Partnership. “United States of America Midterm Self-Assessment Report for the Open Government Partnership: Third Open Government National Action Plan, 2015–2017.” p.33. September 2016. 2015–2017
 USEITI. “About Us: What’s New.” Available at: https://useiti.doi.gov/about/whats-new/. Consulted 25 June 2017. For discussion of the US’s 33 producing states, see USEITI. “Update to the International Secretariat: Subnational Payments.” p.33. 6 May 2015. Available at: https://www.doi.gov/sites/doi.gov/files/migrated/eiti/FACA/upload/USEITI-Subnational-Opt-In-Position-Piece-5-6-15-cleandrft.pdf. Consulted 25 June 2017.
 Open Government Partnership.“United States of America Midterm Self-Assessment Report for the Open Government Partnership: Third Open Government National Action Plan, 2015–2017.” p.33. September 2016. https://www.opengovpartnership.org/sites/default/files/USA_NAP3_self-assessment-report_20160916.pdf. See also United States Extractive Industries Transparency Initiative Multi-Stakeholder Group Advisory Committee Meeting: “Summary of Proceedings: US Department of the Interior Prepared. March 2016.” 8–9 March 2016. Available at: https://www.doi.gov/sites/doi.gov/files/uploads/useiti_msg_-_mar_2016_mtg_summary_final.pdf. Consulted 25 June 2017. See specifically pp.19-20.
 Open Government Partnership. “United States of America Midterm Self-Assessment Report for the Open Government Partnership: Third Open Government National Action Plan, 2015–2017.” p.33. September 2016. https://www.opengovpartnership.org/sites/default/files/USA_NAP3_self-assessment-report_20160916.pdf.
 See U.S. Securities and Exchange Commission. “Press Release: SEC Adopts Rules for Resource Extraction Issuers under Dodd-Frank Act.” 27 June 2016. https://www.sec.gov/news/pressrelease/2016-132.html. Consulted 26 June 2017. See also related discussion in USEITI. “2016 Executive Summary.” pp.26-27. 18 November 2016. https://useiti.doi.gov/downloads/USEITI_executive-summary_2016-11-18.pdf. Consulted 25 June 2017.
 USEITI. “2017 Work Plan.” p.7. 16-17 November 2016. https://www.doi.gov/sites/doi.gov/files/uploads/useiti_2017_work_plan_narrative_final_msg_approved.pdf. Consulted 22 September 2017.
 U.S. Department of the Interior. “Interior Department Releases Second Annual Report of the US Extractive Industries Transparency Initiative.” 16 November 2016. https://www.doi.gov/pressreleases/interior-department-releases-second-annual-report-us-extractive-industries. Consulted 22 September 2017.
 USEITI. “Executive Summary for the Report.” Available at https://revenuedata.doi.gov/downloads/USEITI_executive-summary_2016-11-18.pdf. Consulted 22 September 2017.
 The IRM received this information from the Department of Interior during the pre-publication review of this report. The comment was received via e-mail on 30 April 2018.
 Ibid. p.24. With respect to project-level reporting, Section 1504 states the following: “not later than 270 days after the date of enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Commission shall issue final rules that require each resource extraction issuer to include in an annual report of the resource extraction issuer information relating to any payment made by the resource extraction issuer, a subsidiary of the resource extraction issuer, or an entity under the control of the resource extraction issuer to a foreign government or the Federal Government for the purpose of the commercial development of oil, natural gas, or minerals, including (i) the type and total amount of such payments made for each project of the resource extraction issuer relating to the commercial development of oil, natural gas, or minerals; and (ii) the type and total amount of such payments made to each government” (emphasis added). See “H.R. 4173 (111th): Dodd-Frank Wall Street Reform and Consumer Protection Act.” https://www.govtrack.us/congress/bills/111/hr4173/text. Consulted 1 October 2017.
 Ibid. p.27.
 Ponsford, Victor James. “Project-Level Reporting: Let’s Get Granular.” Extractive Industries Transparency Initiative. 17 August 2017. https://eiti.org/blog/project-level-reporting-lets-get-granular. Consulted 22 September 2017.
 For the text of the Joint Resolution, see “H.J.Res. 41: Providing for Congressional Disapproval under Chapter 8 of Title 5, United States Code, of a Rule Submitted by the Securities and Exchange Commission Relating to ‘Disclosure of Payments by Resource Extraction Issuers.’” https://www.govtrack.us/congress/votes/115-2017/s51. Consulted 1 October 2017. For the text of the rule referred to herein, see “Securities and Exchange Commission 17 CFR, Parts 240 and 249b, Release No. 34-78167; File No. S7-25-15, RIN 3235-AL53. Disclosure of Payments by Resource Extraction Issuers.” https://www.sec.gov/rules/final/2016/34-78167.pdf. Consulted 1 October 2017. The text of the Rule defines “projects” as “operational activities that are governed by a single contract, license, lease, concession, or similar legal agreement, which form the basis for payment liabilities with a government.” See Ibid. p.72.
 See O’Leary, Michael G. and Scott L. Olson. “Dodd-Frank Rollback Begins – Congress Overturns SEC’s Resource Extraction Issuer Payment Disclosure Rule.” https://www.andrewskurth.com/insights-1471.html. Consulted 1 October 2017. See also, Yu, Roger. “Trump Signs Legislation to Scrap Dodd-Frank Rule on Oil Extraction.” USA Today. 14 February 2017. https://www.usatoday.com/story/money/2017/02/14/trump-scraps-dodd-frank-rule-resource-extraction-disclosure/97912600/. Consulted 1 October 2017.
 Ibid. p.7
 USEITI. “Beneficial Ownership Roadmap.” 16-17 November 2016. https://eiti.org/sites/default/files/documents/us_bo_roadmap.pdf. Consulted 22 September 2017. See p.3 for the latter.
 Mia Steinle, “Administration Sounds Death Knell for Transparency Initiative,” Project on Government Oversight, 17 March 2017, http://www.pogo.org/about/press-room/releases/2017/administration-ends-eiti-transparency-initiative.html, consulted 10 May 2018.
 U.S. Department of the Interior Office of Natural Resources Revenue. “Letter to the Chair of the Extractive Industries Transparency Initiative Board.” 2 November 2017. https://www.doi.gov/sites/doi.gov/files/uploads/eiti_withdraw.pdf. Consulted 18 March 2018.
 USEITI. “United States EITI Annual Progress Report 2016. ” pp.10-13. https://www.doi.gov/sites/doi.gov/files/uploads/useiti_annual_activity_report_2016_final_6-27-17.pdf. Consulted 18 March 2018.
 EITI Secretariat. “EITI Chair Statement on United States withdrawal from the EITI.” 2 November 2017. https://eiti.org/news/eiti-chair-statement-on-united-states-withdrawal-from-eiti. Consulted 18 March 2018.
 The US withdrawal as an EITI-Implementing Country follows on the heels of an earlier statement, made via phone call on 9 March 2017 to the Project on Government Oversight, that the US would withdraw its efforts to be validated under the EITI Standard. See Mia Steinle. “Administration Sounds Death Knell for Transparency Initiative.” Project on Government Oversight. 17 March 2017. http://www.pogo.org/about/press-room/releases/2017/administration-ends-eiti-transparency-initiative.html?referrer=https://www.facebook.com/. Consulted 18 March 2018.
 EITI. “EITI Chair Statement on US Withdrawal from the EITI.” 2 November 2017. https://eiti.org/news/eiti-chair-statement-on-united-states-withdrawal-from-eiti .
 National Resource Governance Institute. “Statement on US Government Withdrawal from EITI.” 3 November 2017. https://resourcegovernance.org/news/statement-us-government-withdrawal-eiti.
 “Releases,” 18F / doi-extractives-data, https://github.com/18F/doi-extractives-data/releases, consulted 10 May 2018.
 Written comments provided to the IRM Researcher by a Senior Governance Officer at the Natural Resource Governance Institute. 25 October 2017.
 Written comments provided to the IRM Researcher by a representative of a civil society organization whose work pertains to extractive section governance. The commenter wished to remain anonymous. 17 November 2017.
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