Support Responsible Investment and Business Practices for Companies (US0104)

In September 2014, President Obama committed to work with the private sector and other stakeholders to develop a National Action Plan to promote and expand responsible business conduct. This effort marks the first time the U.S. Government has undertaken a whole-of-government process to focus, improve, and expand its efforts to promote responsible business conduct. Following robust consultation with stakeholders, the Administration expects to publish a Responsible Business Conduct National Action Plan by the end of 2016

For details of these commitments, see the report: https://www.opengovpartnership.org/documents/united-states-mid-term-report-2015-2017/

Commitment 52. Support Responsible Investment and Business Practices for Companies

Commitment Text:

Consult with the Public on the Responsible Business Conduct National Action Plan

In September 2014, President Obama committed to work with the private sector and other stakeholders to develop a National Action Plan to promote and expand responsible business conduct. This effort marks the first time the U.S. Government has undertaken a whole-of-government process to focus, improve, and expand its efforts to promote responsible business conduct. Following robust consultation with stakeholders, the Administration expects to publish a Responsible Business Conduct National Action Plan by the end of 2016.

Responsible Institution: Not Specified

Supporting Institution: Not Specified

Start Date: Not Specified  End Date: Not Specified

Editorial Note: Completion at the midterm is not assessed for this commitment because it was submitted to OGP in September 2016 following the close of the midterm reporting period; progress for this commitment is therefore assessed from September 2016 onwards in the sections below.

Commitment Aim

This commitment aimed for the White House to work with the private sector and other stakeholders to develop a Responsible Business Conduct (RBC) national action plan (NAP), with the overall goal of promoting responsible business conduct. Per a speech delivered by President Obama announcing the plan’s development on 24 September 2014 at a meeting of the Open Government Partnership, [768] the plan is explicitly focused on promoting “responsible and transparent business conduct overseas.” As noted in an article appearing in Corporate Social Responsibility and the Law on 27 September 2014, “the United States had been under considerable pressure from civil society organizations and others to develop such a plan.” [769] This pressure is reflected in the stakeholder recommendations received from roughly 40 stakeholders, including academic institutions, civil society organizations, and individuals, that were collectively received as part of a public consultation process (see discussion in Completion section below) and posted independently on a plan-related website hosted by the International Corporate Accountability Roundtable (ICAR). [770]

The magnitude of interest in the proposed plan is reflective of growing interest in RBC more broadly among relevant stakeholders, in turn motivating the government’s development of the plan. As described in a web post by the US State Department, “the Administration has been focused for some time on a host of issues related to corporate conduct abroad…. In the course of this work, we have registered an uptick in interest and engagement on these issues by American businesses, non-governmental organizations, academics, faith groups, the media, and the public at large.” The post goes on to say that “The NAP is also an opportunity for the US government to explain what we expect of ourselves and reflect how US businesses inform our work globally with other governments, international organizations, and various stakeholder groups.” [771] The development of the proposed plan described in the commitment text takes place against this backdrop.

While the commitment has a well-defined deliverable, the scope of the issues to be addressed in the proposed national action plan, as well as the scope and methods of stakeholder consultation that will inform its development, are not described in the commitment. Collectively, these issues result in a coding of medium specificity for the commitment. Without knowing the expected content of the RBC national action plan or the proposed mechanisms for stakeholder consultation, it is not possible to anticipate that the commitment will have a major impact on open government if fully implemented. The commitment is relevant for the OGP value of civic participation given that the plan’s stakeholder consultation process is expected to provide opportunities for interested stakeholders to contribute to the plan’s development.

Status

End of term: Complete

At the end of term, progress on this commitment is complete. On 16 December 2016, the Department of State released the US national action plan on Responsible Business Conduct. [772] The plan is similar in structure and content to the US government’s overall third national action plan (the evaluation of which comprises the focus of this report).

As described in the plan’s introduction, the “NAP is designed to reinforce and strengthen the US government’s role in advancing RBC through effective intra-governmental coordination and policymaking, promoting high standards globally, facilitating current and future RBC efforts through enhanced collaboration, and highlighting and supporting US industry leadership.” The plan defines “responsible business conduct” as “a broad concept based on the idea that business can perform well while doing good and that governments should set and facilitate the conditions for RBC to take place,” with particular emphasis on (1) the “positive contributions that businesses can make to economic, environmental, and social progress” and (2) “avoiding possible adverse impacts of business conduct… [and] addressing them when they occur.” [773]

Structurally, the plan is divided into five main sections that describe the US government’s existing and future commitments to enhance RBC. These sections include: (1) leading by example; (2) collaborating with stakeholders; (3) facilitating RBC by companies; (4) recognizing positive performance; and (5) providing access to remedy. [774] Each section of the NAP contains a general discussion of the US government’s goals with respect to the section’s overall theme, followed by a series of more specific commitments it aims to achieve, comprised of both new and existing commitments. Across the five sections, the plan proposes 27 new commitments, and describes 43 existing commitments. While the plan specifies an implementing department or agency for each commitment, the plan largely does not specify corresponding implementation deadlines, leaving open the question of exactly when the United States intends to meet these commitments.

With respect to civic participation, Annex I of the plan provides a detailed accounting of the plan’s development and strong evidence of civil society involvement. In particular, following President Obama’s announcement that the government would begin working to develop such a plan in late 2014, the White House National Security Council (NSC)—the federal agency leading the plan’s development—convened an interagency group to “map out the development of the NAP.” As described in the Annex, more than a dozen federal agencies participated in the drafting of the plan. On 20 November 2014, the White House announced a series of public events for interested stakeholders to provide input into the plan via a posting on the White House Blog, with events to be hosted by various independent organizations. Four such events took place as follows: an event in New York City on 15 December 2014 co-hosted by New York University’s Stern Center for Business and Human Rights and the United States Council for International Business; an event in Berkeley California on 6 February 2015 [775] hosted by the Center for Responsible Business at the University of California-Berkeley’s Haas School of Business; an event in Norman, Oklahoma on 2 April 2015 hosted by the Oklahoma College of Law [776]; and an event in Washington, DC on 16 April 2016 [777] co-hosted by the International Corporate Accountability Roundtable, the Global Business Initiative on Human Rights, and the Harrison Institute for Public Law at Georgetown University Law Center. [778] As described in the plan’s Annex, “Each open dialogue featured a wide range of stakeholder groups, and the diverse locations allowed each to focus on certain RBC issues of particular relevance to stakeholders in that location, including but not limited to: the financial sector, the technology sector, extractive industries, the impact of business on indigenous groups, transparency and reporting, and government purchasing practices.” [779]

As part of the blog post, the White House also noted that it would accept written comments on the plan by email, with an initial deadline of 15 January 2015, [780] and with the plan’s Annex further noting that US government officials additionally met with a variety of different stakeholders to solicit inputs into the plan, including non-governmental organizations (NGO’s), academic institutions, foreign government officials, labor unions, business, indigenous peoples, and industry associations. [781] As noted above, the government received inputs from at least 40 stakeholders, including many academic institutions and civil society organizations. [782] With respect to the substantive focus of inputs received, the plan notes that key themes included protecting human rights, human health, and the environment; improving the performance of the US National Contact Point for the Organisation for Economic Co-operation and Development (OECD) guidelines on Multinational Enterprises; [783] leveraging US procurement to promote RBC; and conducting a baselines assessment of RBC-relevant laws in the United States. The IRM researcher was unable to gauge the extent to which the inputs that stakeholders provided on these and other topics were ultimately incorporated into the plan.

Did It Open Government?

Civic Participation: Did Not Change

This commitment did not change the status quo of open government in the United States by the end of the action plan period.

The government afforded interested stakeholders multiple opportunities to provide inputs to the plan’s development over a period of months and via multiple channels, including in-person events and by email. The geographic distribution of the events was noteworthy, covering both coasts as well as the middle of the country. That said, an RBC plan assessment prepared by ICAR—which also co-hosted one of the RBC plan’s public consultation events—notes that “the U.S government did not release any information or summary documents regarding its deliberation over the content of the NAP, making it difficult to discern the extent to which the government took stakeholder recommendations into consideration… While a timeline for initial consultation and terms of reference were provided through the government’s online portal early in the drafting process; beyond that, the US government did not publish a timeline in relation to the rest of the NAP process, such as the drafting, review, or publication dates.” [784] The report also notes that “the US government did not consult around or release a draft NAP, missing a key opportunity to gather stakeholder opinions during a critical phase of the drafting process,” [785] highlighting a lack of transparency on the back-end of the consultation process.

More importantly for the purpose of the evaluation, while the plan itself was published in December 2016, the major components of the government’s engagement with civil society—notably, the four public consultation events and the written comment solicitation period—took place prior to the start of the evaluation period. For this reason, the commitment is not considered to have improved levels of civic participation.

Carried Forward?

At the time of writing, the US government had not published its fourth national action plan, so it is unclear if this commitment will be carried forward. While the implementation of the RBC commitments could lead to improvements related to access to information, civic participation, and public accountability, neither the plan itself nor government discussion surrounding the plan provide a clear indication of how progress on the government’s RBC commitments will be monitored, and whether information on that progress will be tracked centrally and made publicly available. Prior to the plan’s publication, the US State Department noted that “We do not view the creation and publishing of a NAP as an end unto itself, but rather part of our ongoing efforts to clarify and address these important issues. As with other US government national action plans, we will treat this as an iterative and evolving process.” [786] Going forward, the government should aim to complete the new commitments described in the plan, establish mechanisms for monitoring progress on the commitments, and continue making progress on existing RBC-related initiatives.

[768] For the text of the speech, see The White House. “Remarks by President Obama at Open Government Partnership Meeting.” 24 September 2014. https://obamawhitehouse.archives.gov/the-press-office/2014/09/24/remarks-president-obama-open-government-partnership-meeting. Consulted 2 October 2017.

[769] Altschuller, Sara A. “United States to Develop National Action Plan on Responsible Business Conduct.” 27 September 2014. Corporate Social Responsibility and the Law. https://bit.ly/1ytxfOR . Consulted 2 October 2017.

[770] International Corporate Accountability Roundtable: National Action Plan US “Stakeholder Recommendations.” http://nationalactionplan.us/other-recommendations/. Consulted 2 October 2017.

[771] US Department of State. “USG National Action Plan on Responsible Business Conduct: Frequently Asked Questions.” Humanrights.gov. 12 February 2015. https://web.archive.org/web/20170428124214/https://www.humanrights.gov/dyn/2015/usg-national-action-plan-on-responsible-business-conduct/. Consulted 2 October 2017.

[772] US Department of State. “US National Action Plan on Responsible Business Conduct.” 16 December 2016. https://www.state.gov/e/eb/eppd/csr/naprbc/index.htm. Consulted 2 October 2017. For the text of the Plan, see US Department of State. “Responsible Business Conduct: First National Action Plan of the United States of America.” 16 December 2016. https://www.state.gov/documents/organization/265918.pdf. Consulted 2 October 2017.

[773] Ibid. p.4. As described in a preamble written by former Secretary of State John F. Kerry, the plan’s two main aspirational goals are to promote human rights and fight corruption abroad “by encouraging companies to adopt high standards of responsible business conduct.”[773] At a more micro-level, the plan aims to “enhance coordination within our government, push for higher standards and a more level playing field globally, and strengthen public-private coordination to help US companies attain their responsible conduct goals in a variety of environments around the world.” Ibid. Preamble.

[774] Ibid. p6.

[775] For confirmation of the event’s date (which was not included in the White House’s initial blog post), see Counts, Laura. “White House Enlists Haas on Responsible Global Business.” University of California Berkeley Haas School of Business: Haas News. 20 January 2015. http://newsroom.haas.berkeley.edu/white-house-enlists-haas-responsible-global-business/. Consulted 2 October 2017.

[776] For confirmation of the event’s date (which was not included in the White House’s initial blog post) and a summary of the event, see Oklahoma College of Law. “National Action Plan for Responsible Business Conduct Dialogue at the University of Oklahoma College of Law, Norman, Oklahoma.” 2 April 2015. http://www.law.ou.edu/sites/default/files/content/april_2_nap_summary_final.pdf. Consulted 2 April 2017.

[777] For confirmation of the event’s date and Georgetown University’s participation (which was not included in the White House’s initial blog post), as well as a summary report on the event, see Georgetown University Law Center. “Summary Report: Consultation on the US National Action Plan for Responsible Business Conduct.” 16 April 2015. https://bit.ly/2JzK7vr.  Consulted 2 October 2017.

[778] For the full list of events, see Smart, Christopher. “Announcement of Opportunity to Provide Input into the US National Action Plan on Responsible Business Conduct.” The Obama White House Blog. 20 November 2014. https://obamawhitehouse.archives.gov/blog/2014/11/20/announcement-opportunity-provide-input-us-national-action-plan-responsible-business-. Consulted 1 October 2017.

[779] US Department of State. “Responsible Business Conduct: First National Action Plan of the United States of America.” p.24. 16 December 2016. https://www.state.gov/documents/organization/265918.pdf. Consulted 2 October 2017.

[780] For the full list of events, see Smart, Christopher. “Announcement of Opportunity to Provide Input into the US National Action Plan on Responsible Business Conduct.” The Obama White House Blog. 20 November 2014. https://obamawhitehouse.archives.gov/blog/2014/11/20/announcement-opportunity-provide-input-us-national-action-plan-responsible-business-. Consulted 1 October 2017.

[781] US Department of State. “Responsible Business Conduct: First National Action Plan of the United States of America.” p.24. 16 December 2016. https://www.state.gov/documents/organization/265918.pdf. Consulted 2 October 2017.

[782] International Corporate Accountability Roundtable: National Action Plan US “Stakeholder Recommendations.” http://nationalactionplan.us/other-recommendations/. Consulted 2 October 2017.

[783] For more information on the Guidelines, see Organisation for Economic Co-Operation and Development. “Guidelines for Multinational Enterprises.” http://mneguidelines.oecd.org/guidelines/. Consulted 2 October 2017. Per their website, the Guidelines “are recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide non-binding principles and standards for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards.”

[784] International Corporate Accountability Roundtable. March 2017. “Assessment of the United States National Action Plan (NAP) on Responsible Business Conduct.” p.1. https://bit.ly/2KjKLOE. Consulted 2 October 2017.

[785] Ibid. p.2.

[786] US Department of State. “USG National Action Plan on Responsible Business Conduct: Frequently Asked Questions.” Humanrights.gov. 12 February 2015. https://web.archive.org/web/20170428124214/https://www.humanrights.gov/dyn/2015/usg-national-action-plan-on-responsible-business-conduct/. Consulted 2 October 2017.