Mr. Ted Kassinger
O’Melveny & Myers, LLP
Deputy Chief of Staff
Vice Chair, ACIEP
Dear Ted and Thea:
Please find attached the initial Report of the U.S. State Department Stakeholders Advisory Board (SAB) on Implementation of the OECD Guidelines for Multinational Enterprises for consideration by the Advisory Committee on International Economic Policy (ACIEP).
We are pleased that the Report received the approval of the entire SAB and is submitted on behalf of the following members, which include representatives from Civil Society, Business, Labor, and Academia:
Owen Herrnstadt, Co-Chair
Trevor Gunn, Co-Chair
We hope that the Report will be placed on the agenda at our next ACIEP meeting. We look forward to continuing the work of the SAB and thank you for your gracious support of our activities.
The United States adheres to the Organization for Economic and Cooperation Development (OECD) Declaration on International Investment and Multinational Enterprises (2011), which contains the OECD Guidelines for Multinational Enterprises (OECD Guidelines or Guidelines). As stated by the U.S. State Department, “Governments adhering to the Guidelines each have a National Contact Point (NCP), whose main functions are to: (1) promote awareness of the Guidelines to business, civil society, and the general public; and (2) work with business, civil society and the public on all matters relating to the Guidelines…”
In September 2010, the U.S. State Department requested the Investment Subcommittee of the Advisory Committee on International Economic Policy (ACIEP) to conduct a review of the operation and organization of the NCP. The Investment Subcommittee conducted its review over the next several months and submitted its report, which included recommendations to the ACIEP. The ACIEP submitted the report to the State Department in January 2011.
At the June 20, 2011, ACIEP meeting, Assistant Secretary Jose Fernandez announced that the State Department accepted the Investment Subcommittee’s consensus recommendations. Those recommendations included a periodic review of the procedures of the NCP, the promotion of the Guidelines, and other technical or procedural issues with which the NCP requests guidance. At the September 13, 2011, ACIEP meeting, he announced that he would establish a Stakeholder Advisory Board (SAB), a subcommittee of the ACIEP, to fulfill the above tasks.
Assistant Secretary Fernandez and ACIEP Chairman Ted Kassinger subsequently invited Owen Herrnstadt, International Association of Machinists and Aerospace Workers Chief of Staff to the International President and Trevor Gunn, Medtronic Managing Director for International Relations, to serve as the SAB Co-Chairs. Fernandez and Kassinger asked the Co-Chairs to conduct a search process to identify a diverse group of representatives from businesses, civil society, and academia to serve on the SAB.
On January 31, 2012, the Assistant Secretary announced the 12 board members that were selected from a diverse group of individuals, including four from business, two from labor, two from the environmental community, two from civil society (includes human rights representatives), and two from academia.
The Terms of Reference for the SAB directs the SAB to “transmit reports, findings, recommendations, etc. to the ACIEP which will submit such information to the State Department for consideration.” The substantive Terms of Reference describe four general areas of information that is requested concerning: 1. Structure and Monitoring of the U.S. NCP; 2. Promotion of the Guidelines; 3. Proactive Agenda for the U.S. NCP, and; 4. Handling of Specific Instances. The full Terms of Reference for the SAB are attached to this report. The SAB gathered facts and deliberated during several sessions it convened beginning in March 2012. In general, meetings were held for either two or three hours. For the first several months, the SAB concentrated on learning from the NCP about the activities it has undertaken with respect to its procedures, promotional activities and proactive agenda.
The SAB also gathered information from the NCPs, or their representatives, of the Netherlands, Canada, Norway and the U.K., who graciously participated by telephone. (The U.K. NCP met with the SAB in person and by telephone). The Compliance Advisor/ Ombudsman (CAO), the grievance mechanism for the World Bank Group’s International Finance Corporation (IFC) and Multilateral Insurance Guarantee Agency (MIGA), also participated in one meeting, sharing its procedures with respect to its own apparatus. The SAB also heard from other federal agencies about their activities with respect to the NCP.
The Report addresses many of these matters in the following four sections: 1. Structure and Monitoring of the U.S. NCP; 2. Promotion of the Guidelines; 3. Proactive Agenda for the U.S. NCP, and; 4. Handling of Specific Instances.
The Co-Chairs of the SAB thank members of the SAB for their hard work, diligence and constructive exchanges. Members share many recommendations and considerable effort was made to reach consensus on various topics. As the Report reflects, there are a number of issues where there remain divergent views. It is the opinion of the Co-Chairs that understanding these differences and the rationale for them is as critical to the work of the State Department as is understanding areas of general agreement.
A. NCP Staffing Issues
Prior to the reorganization of the NCP, the functions of the Office of the NCP were carried out by staff with other duties in the Bureau. When the new NCP procedures were unveiled, it was announced that it would be filled by two full-time staff members, including one staff member from the Bureau of Democracy, Human Rights, and Labor (DRL). The NCP functioned under this arrangement for several months. This summer, a new NCP was named. Her responsibilities as NCP have been combined with other responsibilities. The second staffer who had served with the NCP has since ceased to serve in that position. Recently, the NCP has moved to another position for the next several months. The NCP position is now filled by another State Department official until her return.
The NCP has concluded some older pending Specific Instance requests, but continues to process a number of open requests. The SAB understands that in multiple Specific Instances, the previous NCP was required to recuse himself, and that the second staff member handled those Specific Instances in his place.
The NCP has posted contact information on the NCP website and has developed and made available a range of resource materials, including:
As recognized by the Commentary on the Implementation Procedures for the OECD Guidelines, the accessibility of an NCP to affected groups and stakeholders is critical to its effectiveness. Various obstacles, ranging from language barriers to resource constraints, can prevent access to an NCP by intended users, thereby undermining the NCP’s successful operation. It is important therefore for the U.S. NCP to ensure adequate accessibility to all of its activities, including its specific instance process.
One barrier to accessibility that could confront many potential users of the U.S. NCP is that they may not be fluent in English or the documents supporting their claims may not be available in English. For instance, in the Edouard Teumagnie/AES Corporation complaint, the requester had to translate documents into English in the course of the specific instance process. In this Specific Instance, it is unclear what the U.S. NCP would have done if the requester had lacked the resources to translate all supporting documents into English.
Academic, labor, environment and civil society SAB members observed that another potential barrier to accessibility arises where the individual, community, or organization submitting a Specific Instance request is unfamiliar with the language of the Guidelines and therefore is unable to explain exactly which provisions of the Guidelines are implicated. These members noted this is most likely to occur where a requesting party wishes to seek the good offices of the NCP directly, without the assistance of U.S.-based or international non-governmental organizations or trade unions. They noted that to date, when presented with Specific Instance applications that are unclear in this respect, the NCP has engaged in dialogue with the requesting party to clarify the party’s intent.
They commented that it is, however, unclear what the NCP would do if the party were unable to provide such clarification.
Business SAB members disagreed with the above observation. They believe that asking the party to state which element of the Guidelines is at issue is not a barrier in any way.
C. Transparency and Confidentiality
The SAB held extensive consultations and discussion on the subject of confidentiality in the context of Specific Instance proceedings. The NCP considers confidentiality to be a matter of “good faith” of the participants, and a breach of confidentiality can be grounds for discontinuation of a Specific Instance. The NCP expects both parties to keep all Specific Instance documents confidential, including the original complaint, and also to maintain strict confidentiality about the proceedings. It is not clear that public release of a Specific Instance complaint is sufficient grounds under all circumstances to discontinue the NCP’s involvement, but the NCP has a “strong preference” that the complaint should be kept confidential, as the NCP deems it important to establish a safe space for mediation.
The issue of transparency was a highly contentious one for the SAB. In general, academic, labor, environmental and civil society participants noted that while confidentiality during a mediation session is necessary for a successful outcome, it would be more in keeping with the Procedural Guidance to the OECD Guidelines to allow more transparency of key complaint documents and NCP procedure. These participants also reported that at least some civil society and labor organizations are unable to participate in the Specific Instance process because their norms of procedure require greater transparency toward their members than the NCP allows.
By contrast, business participants in general believed that disclosure of the complaint and other aspects of the NCP proceedings can damage the prospects for mediation, particularly if they are linked to public campaigns against the company by related organizations. Business representatives reported that in at least one submission, the requesting party in a Specific Instance had used information from inside the Specific Instance proceedings as a platform to attack companies publicly.
In an effort to compare NCP procedure on this point and others, the SAB held in-person meetings and teleconferences with the NCPs of the United Kingdom, Norway, Netherlands, and Canada. All four of these NCPs acknowledged that publicity and smear campaigns can make mediation more difficult and that they prefer for parties to not engage in such tactics. They collectively viewed the issue as manageable, however, and none of them took measures such as requiring that requesters keep the text of their Specific Instance complaints confidential. None of these NCPs had policies indicating that they would terminate their involvement in a Specific Instance if a party were to make its complaint public.
The Norwegian NCP noted that it follows a regular practice of publishing Specific Instance complaints in their entirety when the NCP releases its decision to accept or reject a complaint. Additionally, to varying degrees, the Norwegian, Netherlands and U.K. NCPs all publish information about current and past Specific Instances on their websites, on many occasions going beyond the minimum requirement that they publish a final statement for each complaint. Moreover, the procedures of both the Norwegian and U.K. NCPs specify that they will post initial assessments on their websites.
In the past, the NCP’s promotional activities have been focused on the business community. The NCP is seeking the SAB’s assistance in identifying other audiences and stakeholder groups as well as suggestions regarding the information that should be shared with them concerning the Guidelines and the NCP specific instance process. The NCP is also seeking advice on how to make that information accessible and relevant to the target audiences. This Report categorizes these issues under the following three topics:
2. Messaging; and
Current Status and Observations
a. consider new developments and emerging practices concerning responsible business conduct;
b. support the positive contributions enterprises can make to economic, social and environmental progress;
c. participate where appropriate in collaborative initiatives to identify and respond to risks of adverse impacts associated with particular products, regions, sectors or industries.”
A. NCP Procedures at the Initial Assessment Phase
The SAB notes that the NCP’s performance as to the ministerial aspects of the Initial Assessment phase has greatly improved since the revision of the NCP’s procedures in 2011. Complainants have received acknowledgments of receipt from the NCP, and Respondents have received timely notification of the institution of specific instance proceedings. Communication in general appears much smoother and more satisfactory to both sides.
Discussion within the SAB of the NCP’s procedures and practice at the Initial Assessment phase focused on six issues:
The SAB inquired into the steps the NCP takes in order to ensure that the parties reply promptly and comply with target timelines. In at least one instance, the NCP reported having resorted to informing the corporate respondent that the NCP would issue a Final Statement in which that party’s non-cooperative approach would be highlighted. In a presentation to the SAB, representatives of one NCP said that they had used the threat of a public statement as an inducement for the corporate respondent to participate. All of the academic, labor, environmental and civil society SAB participants considered that if the NCP were to outline its course of action when faced with delayed responses as a matter of policy, it might avoid such situations. Conversely, the business members of the SAB noted that Guidelines are a voluntary procedure and that parties may not be compelled to participate.
With respect to parallel proceedings, the SAB considered whether the current policy is sufficient, or whether the NCP should instead adopt a more detailed and specific approach, such as that of the U.K. NCP. Discussion at the SAB centered on whether the U.K. procedures offered better clarity by establishing a general presumption that the U.K. NCP can proceed despite the existence of proceedings in other forums, or whether they would unduly encourage notifiers to file multiple complaints in different forums. During a presentation to the SAB, however, representatives of the U.K. NCP asserted that they see few complaints presenting parallel proceedings. For several of the SAB members, this suggests that the U.K. procedures do not unduly encourage multiple filings. Business members of the SAB do not agree with this observation.
With respect to exhaustion of local remedies, some members of the SAB were concerned that the U.S. NCP had dismissed one Specific Instance at the Initial Assessment phase, at least in part because it concluded that the notifier should have instead taken his complaint to the local courts in India. Discussion on this point centered on whether dismissal of Specific Instance complaints based on a failure to “exhaust” local remedies is consistent with the Guidelines. Some felt that the NCP should be free to conclude that a notifier should have taken his complaint to the local courts first, while others strongly disagreed. All participants recognized that neither the Guidelines nor the Procedural Guidance provides express support for an exhaustion requirement, and that complainants from non-adhering countries are allowed to file Specific Instance complaints in the home country of a multinational corporation.
With respect to actions at the pre-Initial Assessment phase, it was noted that the NCP has closed complaints with Final Statements that left unclear whether an Initial Assessment had been conducted. In one instance, for example, the NCP closed the complaint because the Respondent was unwilling to engage, but did not specify if the complaint had been assessed to determine whether it had been properly submitted and substantiated as called for by the U.S. NCP’s Specific Instance procedures. Discussion focused on whether the NCP can dismiss Specific Instance complaints without conducting an Initial Assessment. All participants agreed that neither the Procedural Guidance nor the U.S. NCP’s procedures mention dismissals prior to the Initial Assessment.
With respect to the NCP’s continuing role when the Respondent declines to engage, it was noted that in a number of submissions, the NCP has concluded its involvement in a Specific Instance upon deciding that mediation was unlikely to occur. Discussion focused on whether the NCP might have other options to assist in resolving a dispute, even when mediation is impossible, and whether this function is contemplated by the Procedural Guidance to the OECD Guidelines.
With respect to the NCP’s reliance on outside sources during the Initial Assessment, it was noted that on several occasions, the U.S. NCP has relied on other governmental entities to gather facts and clarify the situation on the ground in the context of the Initial Assessment phase. Discussion focused on whether this was appropriate and on whether the NCP could, under some circumstances, consider conducting a site visit during an Initial Assessment.
The SAB was able to come to a consensus recommendation only as to the course of action the NCP should undertake when a party fails to respond in a timely fashion:
The SAB was unable to come to consensus recommendations on other aspects of the NCP’s procedure at the Initial Assessment stage. We therefore present the varying positions of members of the SAB, as well as the supporting arguments on both sides.
Exhaustion of Local Remedies
Pre-Initial Assessment Dismissals
Options for Good Offices When Mediation is Impossible
Outside Information and Site Visits
The SAB agreed that the NCP’s agreement with FMCS constitutes a positive step towards ensuring that the U.S. NCP’s mediation process is effective and successful. The SAB notes that the FMCS is an independent agency tasked with preserving and promoting labor-management peace and cooperation. Its roster of neutrals should prove helpful in resolving disputes when both parties are interested in pursuing mediation. The actual role of the FMCS was discussed by the SAB. The SAB also discussed possible responses by the NCP if communities or individuals based overseas could not travel to the U.S. for mediation, for various reasons, including the financial inability to support a trip to the U.S.
C. Fact-finding and/or Creating a Problem-Solving Atmosphere
The SAB engaged in numerous discussions regarding whether the NCP should engage in fact-finding, and whether doing so would help or hinder the creation of a problem-solving atmosphere. Several members strongly believed that fact-finding was a necessary tool to assure full participation of the parties in the process. Still, some members believed just as strongly that fact-finding would discourage MNEs from fully participating in the process.
During our review of the procedures of other NCPs, the SAB learned that the U.K., Netherlands and Norwegian NCPs are authorized to engage in fact finding. One NCP encourages MNEs to participate in the Specific Instance process by emphasizing its authority to engage in fact finding, which under certain circumstances can ultimately be included, along with the determination of whether the Guidelines have been violated, in its publically issued Final Statement.
On the other hand, during conversations with the U.S. NCP, the SAB learned that the NCP feels challenged by the number of Specific Instance requests it receives in which the complaining party does not actually want mediation, but instead wants the NCP to determine whether the MNE at issue is violating the Guidelines.
D. Issuance of a Final Statement
The SAB discussions regarding Final Statements focused on whether the NCP should issues recommendations on the implementation of the Guidelines and under what circumstances it should do so. It was noted that, to date, the NCP has never issued recommendations, although its procedures say that when the parties fail to reach agreement or are unwilling to participate in good faith, the NCP’s Final Statement “will include recommendations on the implementation of the Guidelines, as appropriate.”
The SAB reviewed the Final Statements of several other NCPs. In Final Statements that are issued after a failed mediation or after one or both parties have expressed an unwillingness to engage in the process, the Norwegian and U.K. NCPs include a determination of whether the Guidelines were breached, along with recommendations regarding the correction of any such breaches.
Additionally, the SAB learned that the Norwegian, U.K. and Canadian NCPs provide the parties with a copy of the draft Final Statement and, at the NCPs’ discretion, incorporate the parties’ comments on the draft. The SAB noted that the U.S. NCP’s procedures do not clarify whether parties will be allowed the opportunity to comment on a draft Final Statement before it is published.
The SAB was deeply divided in its discussion of the types of remedies that could appropriately be sought through a Specific Instance complaint. The SAB noted that the Procedural Guidance and Commentary do not address the forms of relief, if any, the parties could, on a voluntary basis, agree to as the result of a Specific Instance process. Discussion focused on whether the NCP should take a broader view of potential remedies than its current practice suggests. Members of the SAB discussed whether it was ever appropriate to seek compensation through a Specific Instance process. They also discussed whether determinations by the NCP of whether an MNE had behaved inconsistently with the Guidelines were a potential remedy that the Specific Instance process could provide.
F. Monitoring and Reporting
The SAB’s discussion of this issue focused on whether the NCP should further clarify the situations in which it would conduct monitoring, and also the utility of building monitoring into the Specific Instance process. Recognizing the differing staff and resource levels among all of the NCPs, the SAB learned that some NCPs in other countries routinely engage in monitoring as part of follow-up in the Specific Instance process. For instance, the U.K., Canadian and Norwegian NCPs request parties to provide them with substantiated updates on the MNE’s progress in implementing the recommendations in the Final Statement. Additionally, in one recently published submission, the Netherlands NCP committed to assist in ensuring that an agreement to pursue support from other NCPs pertaining to a proposed review and assessment mission to India is carried out.
The SAB also discussed whether the NCP should formally report the results of Specific Instances to other government bodies. The SAB learned that both the U.K. and Norwegian NCPs have built this step into their Specific Instances process. The U.K. NCP, for instance, sends its Final Statements (whether monitoring is envisaged or not) to Parliament, its Exports Credit Agency, and other government stakeholders.
G. Reporting to the OECD Secretariat
The SAB discussed the importance of strictly adhering to standardized reporting to the OECD Secretariat by adequately distinguishing between each phase of the proceedings and by providing information on the duration of each phase.
 In addition to Herrnstadt and Gunn, current members of the SAB include: Barbra Anderson, Sabre Holdings; Michael Bride, United Food and Commercial Workers Union; Brian Campbell, International Labor Rights Forum; Lewis Cohen, SI-WEL International; Lance Compa, Cornell University; Celeste Drake, AFL-CIO; Kristen Genovese, Center for International and Environmental Law; Adam Greene, U.S. Council for International Business; Clifford Henry, Procter and Gamble; Jonathan Kaufman, EarthRights International ; Ray Marshall, University of Texas; Sarah Singh, Accountability Counselhttp://www.oecd.org/daf/inv/mne/48004323.pdf
 For example, the CAO’s Operational Guidelines specify that it will accept complaints in any language and will attempt to communicate with complainants in the language in which the complaint was submitted. CAO Operational Guidelines §§ 2.1.3, 6 (Mar. 2013), available at http://www.cao-ombudsman.org/howwework/documents/CAOOperationalGuidelines_2013.pdf (hereinafter, “2013 Operational Guidelines”); see also CAO Operational Guidelines §§ 1.4, 2.2.3 (Apr. 2007), available at: http://www.cao-ombudsman.org/about/whoweare/documents/EnglishCAOGuidelines06.08.07Web.pdf (hereinafter, “2007 Operational Guidelines”).
 The CAO’s Operational Guidelines provide a possible example: they mention that it is helpful if a complaint includes information about specific policies, guidelines or procedures that are thought to have been violated, but explicitly states that “[t]here is no requirement for a complainant to specify particular policies, guidelines or procedures.” 2013 Operational Guidelines § 2.1.4; 2007 Operational Guidelines § 2.2.4.
 In deciding whether the new information should be accepted, the NCP should consider, among other things, whether the information is so new and unrelated to the initial request that it presents a new Specific Instance and whether the newly available information is relevant to determinations such as whether bona fide issues have been raised or what, if any, recommendations on the implementation of the Guidelines the NCP should make. The NCP need not consider the newly submitted information if it is determined that the information was submitted solely to draw out the process or “shift the ground” on which the Specific Instance was initiated. However, given that the NCP Specific Instance process is non-adjudicatory and non-adversarial and lacks any ability to compel compensation to requesting parties, there is little reason to artificially “freeze” in time the issue a requester seeks to address. Rather, as events develop on the ground, the NCP might well be in a better position to offer its good offices should it learn more about whether the specific actions complained of have changed, ceased, or continued.
 “In addition to the transparency requirements of the Guidelines, the Norwegian NCP complies with the Norwegian Freedom of Information Act and practices enhanced access to information…All information will be made public, except when information may cause harm to individuals, reveal business secrets or expose certain details of the mediation process. As a consequence, all correspondence with the NCP can be made publically available if someone asks for access to it. NCP Norway publishes all reports, including initial assessments, final statements and mediated outcomes. The NCP also issues a press release when a case is closed.” NCP Norway, Assessment of Complaints, Available at http://www.regjeringen.no/en/sub/styrer-rad-utvalg/ncp_norway/assessment-of-complaints.html?id=732730
 See, Norwegian NCP, Procedural Guidelines for Handling Complaints (Oct. 1, 2013), available at: http://www.regjeringen.no/upload/UD/Vedlegg/ncp/complaints_guidelines.pdf (hereinafter, “Norwegian NCP Procedures”); U.K. NCP, U.K. National Contact Point (NCP) Procedures for Dealing with Complaints Brought under the OECD Guidelines for Multinational Enterprises, § 3.7.3 (Jan. 25, 2011), available at: http://www.bis.gov.uk/files/file53070.pdf (hereinafter, “U.K. NCP Procedures”).
 We note that the Guidelines do not indicate the business community should be specially targeted for outreach, to the exclusion of other groups. See Procedural Guidance, I (B) (2) (“The National Contact Point will: . . . [r]aise awareness of the Guidelines and their implementation procedures, including through cooperation, as appropriate, with the business community, worker organisations, other nongovernmental organisations, and the interested public.”).
 See Commentary on Procedures, p. 80, para. 16 (“In their efforts to raise awareness of the Guidelines, NCPs will cooperate with a wide variety of organisations and individuals, including, as appropriate, the business community, worker organisations, other nongovernmental organisations, and other interested parties. Such organisations have a strong stake in the promotion of the Guidelines and their institutional networks provide opportunities for promotion that, if used for this purpose, will greatly enhance the efforts of NCPs in this regard.”).
 See Procedural Guidance, I(C)(5) (“If issues arise in non-adhering countries, [the NCP will] take steps to develop an understanding of the issues involved, and follow these procedures where relevant and practicable.”); Commentary on Procedures, p. 86, para. 39 (“In the event that Guidelines-related issues arise in a non-adhering country, home NCPs will take steps to develop an understanding of the issues involved. While it may not always be practicable to obtain access to all pertinent information, or to bring all the parties involved together, the NCP may still be in a position to pursue enquiries and engage in other fact finding activities.”).
 English, French, and Spanish have been provided. See, http://www.state.gov/e/eb/oecd/usncp/guidelines/index.htm
 The Guidelines are clear that promotion should include not only advancing the Guidelines among stakeholders but also building awareness of the specific instance procedures and the process of filing a complaint. See Commentary on Procedures, p. 80, para. 15 (“NCPs should provide information on the procedures that parties should follow when raising or responding to a specific instance. It should include advice on the information that is necessary to raise a specific instance, the requirements for parties participating in specific instances, including confidentiality, and the processes and indicative timeframes that will be followed by the NCP.”).
 See Procedural Guidance § I(B)(1) (The NCP will "[m]ake the Guidelines known and available by appropriate means, including through online information, and in national languages.”)
 U.S. NCP Procedures for Specific Instances Under the OECD MNE Guidelines (Nov. 2011), available at http://www.state.gov/e/eb/oecd/usncp/us/index.htm#3.
 See U.K. Dept. for Business Innovation & Skills, Approach of the U.K. national contact point to specific instances in which there are parallel proceedings (Jan. 2011), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31717/11-652-approach-national-contact-point-parallel-proceedings.pdf.
 U.S. NCP, Common Framework for Annual Reporting by National Contact Points for the Period 1 July 2011-30 June 2012, para. 16(c), available at: http://www.state.gov/documents/organization/202978.pdf.
 See id. para. 28(a).
 See Statement by the U.S. National Contact Point for the OECD Guidelines for Multinational Enterprises on the LEAD Group and Innospec (Feb. 1, 2012), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/183059.htm; U.S. NCP Final Assessment: Communications Workers of America (AFL-CIO, CWA)/ver.di and Deutsche Telekom AG (July 9, 2013), at http://www.state.gov/e/eb/oecd/usncp/links/rls/211646.htm.
 OECD, Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises p. 83, para. 26, p. 86 para. 39 (2011), available at http://www.oecd.org/daf/inv/mne/48004323.pdf.
 Id. p. 84, para. 29.
 U.S. NCP, Federal Mediation Agency and U.S. National Contact Point Partner to Mediate Guidelines Disputes (Jan. 10, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/202685.htm.
 The U.S. NCP, as well as some NCPs in other countries, have noted the difficulty in obtaining full participation by MNEs in the specific instance process, including mediation. For example, in one recently issued Final Assessment, MNE participation was limited. See U.S. NCP, Communications Workers of America (AFL-CIO, CWA)/ver.di and Deutsche Telekom AG, Final Statement (July 9, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/211646.htm. The NCP found that “an assessment that the concerns about best practices raised by CWA were material and substantiated”. The NCP requested that “the parties participate in efforts to arrive at a consensual resolution of the matter and recommended voluntary, third-party mediation under the auspices of the …FMCS.” The MNE “raised various questions and concerns regarding the process going forward…Consideration of DT/T-Mobile’s questions and concerns, in part, resulted in significant delays in process…” After participating in a pre-mediation meeting, the MNE failed to respond to the FMCS’s request to schedule a date for the first mediation meeting. The NCP subsequently issued its Final Assessment, informing the parties that it had “determined that the U.S. NCP is no longer able to contribute to a positive resolution of this dispute and therefore withdraws its offer of good offices.”
 UK NCP Procedures at 4.5, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31822/11-1092-uk-ncp-procedures-for-complaints-oecd.pdf; Netherlands NCP Procedures at 7, available at http://www.oecdguidelines.nl/ncp/filing-specific-instance/#a7; Norwegian NCP Procedures at p. 8, available at http://www.regjeringen.no/upload/UD/Vedlegg/ncp/complaints_guidelines.pdf.
 U.S. NCP Procedures for Specific Instances Under the OECD MNE Guidelines (Nov. 2011), available at http://www.state.gov/e/eb/oecd/usncp/us/index.htm#3.
 Since the conclusion of the SAB’s deliberations, the U.S. NCP has issued recommendations in one Specific Instance. See U.S. NCP, Community Legal Education Center of Cambodia (CLEC)/EarthRights International (ERI) and American Sugar Refining Inc. (ASR), Final Statement (June 20, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/210970.htm.
 U.S. NCP Procedures.
 See Norwegian NCP Procedures at p. 9, available at http://www.regjeringen.no/upload/UD/Vedlegg/ncp/complaints_guidelines.pdf; U.K. NCP Procedures at 5.1, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31822/11-1092-uk-ncp-procedures-for-complaints-oecd.pdf.
 See Norwegian NCP Procedures at p. 9-10; UK NCP Procedures at 5.2; Canadian NCP Procedures at 13, available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/procedures_guide_de_procedure.aspx?lang=eng.
 In this regard, some members of the SAB believe that the issuance of recommendations and determinations could contribute to the NCP’s fulfillment of its “proactive agenda,” which aims to foresee issues MNEs may face that are relevant to the Guidelines and assist them in applying the Guidelines faithfully.
 U.S. NCP, U.S. NCP Initial Assessment: Individual A/Company X and MNE Number One (Aug. 28, 2012), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/197795.htm.
 U.S. NCP Procedures.
 See UK NCP Procedures at 6.1; Canadian NCP Procedures at 13.4; Norwegian NCP Procedures at p. 10.
 See Netherlands NCP, Preliminary Report on the alleged breach of the OECD Guidelines by Pohang Iron and Steel Company (POSCO), ABP, All Pension Group (APG) and Norwegian Bank Investment Management (NBIM) (Mar. 13, 2013), available at: http://www.oecdguidelines.nl/wp-content/uploads/ncp_preliminary_statement_somo_bothends_abp_apg_13_3_2013incl.pdf.
 See U.K. NCP Procedures at 5.2; Norwegian NCP Procedures at p. 11.
 Based on written responses to questions posed by the SAB on January 10, 2013. The Norwegian NCP informs relevant government entities of its statements and reports when they are relevant to agencies’ policies and programs. See Norwegian NCP Procedures at p.11.