On September 2, 2015, the US District Court for the District of Massachusetts held that the SEC's delay in adopting a final resource extraction rule as required by Section 13(q) of the Exchange Act constitutes unlawful withholding of the rule in violation of the Administrative Procedure Act. The court ordered the SEC to file with the court an expedited schedule for this rulemaking within 30 days.

Section 13(q) of the Exchange Act, enacted in 2010 as part of the Dodd-Frank Act, set a 270 day deadline for the SEC to adopt rules requiring certain disclosure by reporting companies engaged in commercial development of oil, natural gas or minerals. The SEC adopted Rule 13q-1, the resource extraction rule, in August 2012, well past the April 17, 2011 statutory deadline for the rulemaking. As adopted, the rule required resource extraction issuers listed on a US stock exchange to disclose on Form SD payments made to foreign governments or the US federal government for the commercial development of oil, natural gas or minerals. The rule would have required disclosure for fiscal years ending after September 30, 2013.

Associations of oil, natural gas and mining companies filed suit challenging the final rule on various grounds. In July 2013, the US District Court for the District of Columbia vacated the rule and remanded it to the SEC, ordering the agency to reformulate the rule (Am. Petroleum Inst. v. S.E.C., 953 F. Supp. 2d 5 (D.D.C. 2013)). In response, the SEC indicated that it would not appeal the July 2013 ruling, but instead would redraft the rule in a new rulemaking process that took the ruling into account (see Legal Update, SEC to Redraft Resource Extraction Rule, Will Not Appeal Federal Court Ruling). However, the SEC has not yet proposed a replacement rule, and the agency's rulemaking agenda has reflected postponements of the anticipated rulemaking timeline.

Amidst these events, Oxfam America, Inc. brought this suit against the SEC to compel it to implement Section 13(p) of the Exchange Act.

Given the complexity of this rulemaking, it remains to be seen what the schedule the SEC files with the Massachusetts District Court will anticipate. The September 2, 2015 holding states that the court retains jurisdiction to monitor the schedule and ensure compliance with its order.

For more information about Section 13(q) of the Exchange Act and the related rulemaking and litigation, see Practice Note, Summary of the Dodd-Frank Act: SEC Authority and Selected Securities Act and Exchange Act Provisions.