FINAL NOTICE

To:
Rio Tinto Plc

1.
ACTION

1.1.
For the reasons given in this notice, the Authority hereby imposes on Rio Tinto Plc

(“Rio Tinto”) a financial penalty of £27,385,400.

1.2.
Rio Tinto agreed to settle at an early stage of the Authority’s investigation. Rio

Tinto therefore qualified for a 30% discount under the Authority’s executive

settlement procedures. Were it not for this discount, the Authority would have

imposed a financial penalty of £39,122,007 on Rio Tinto.

2.
SUMMARY OF REASONS

2.1.
The Authority takes this action because Rio Tinto has breached the Authority’s

Disclosure and Transparency Rules (“DTR”) by its failure in 2012 to account

correctly for high-value mining assets based in the Republic of Mozambique when

publishing its interim results. Rio Tinto acquired Riversdale Mining Limited

(“Riversdale”) (an Australian listed mining company which Rio Tinto later referred

to as Rio Tinto Coal Mozambique (“RTCM”)) in August 2011 for US$3.7 billion. Rio

Tinto’s valuation of RTCM was based on a plan to rapidly establish coal production

by RTCM, with a significant aspect of this plan being RTCM’s ability to barge coal

from the mines down the Zambezi river to the coast for exporting to market.

During the due diligence of Riversdale, the ability to barge was (among other

matters) identified as a significant risk to the financial model being used to

support the acquisition price.

2.2.
Within a few months of the acquisition, risks identified prior to acquisition began

to evolve and, in particular, it became apparent that RTCM would only be able to

barge one third of the intended maximum amount of coal and that this coal

transportation capacity would need to be replaced with higher cost alternatives. In

addition to the lost barging capacity, shortly before the end of 2011 Rio Tinto

discovered that their application to barge on the Zambezi river would be rejected

by the Government of the Republic of Mozambique (“GoM”).

2.3.
During the first half of 2012, RTCM sought to resubmit their barging proposal to

the GoM as part of a revised coal transportation proposal including a new rail and

port system, while at the same time working on detailed plans for the

development of RTCM’s mines. In April 2012, the GoM again rejected the barging

option in terms making clear that there was no reasonable prospect of barging

being part of any viable proposal. RTCM then began to carry out financial

modelling of its mining business on the basis that other more expensive transport

options that would be slower to establish were required. This modelling indicated

that the NPV of RTCM, based on the best information available at that time, was

negative.

2.4.
However, Rio Tinto decided that, while it was formulating its revised plans, it

would not need to carry out an impairment test, as required by International

Accounting Standards (“IAS”) 36, to assess whether an impairment was required

to be recorded in its financial reporting for half year 2012 (“HY2012”) and

reasoned, in purported support of this decision, that the lack of clarity around how

it would develop the mines, and in particular transport the coal to market, meant

that reaching a valuation figure for RTCM was premature and that it was

appropriate to continue to value RTCM at the acquisition price.

2.5.
The Authority considers that this demonstrated a serious lack of judgement. There

were indicators of impairment for RTCM which, in accordance with the

International Financial Reporting Standards (which UK public companies are

required to follow), meant that Rio Tinto was required to carry out an impairment

test. Had Rio Tinto complied with its obligation to carry out an impairment test, a

material impairment would have been required to be reported to the market at

HY2012. Rio Tinto’s financial reporting was therefore inaccurate and misleading

and this continued until 17 January 2013 when Rio Tinto finally announced an

impairment of RTCM writing off approximately 80% of its value. RTCM was

ultimately sold for substantially less than even this write-down value.

2.6.
Contrary to DTR 4.2.4R(1), Rio Tinto failed to comply with IAS 34. In these

circumstances, IAS 34 required Rio Tinto to conduct an impairment test of RTCM

and record a material impairment in accordance with IAS 36. Contrary to DTR

1.3.4R Rio Tinto, by failing to act upon signs that an impairment assessment was

required, failed to take all reasonable care to ensure that information

disseminated in its HY2012 interim reporting was not misleading. This resulted in

the omission of important information, namely that RTCM was materially

impaired.

2.7.
The Authority therefore has decided to impose a financial penalty on Rio Tinto in

the amount of £27,385,400 pursuant to section 91 of the Financial Services and

Markets Act 2000.

3.
DEFINITIONS

3.1.
The definitions below are used in this Final Notice.

the “Act” means the Financial Services and Markets Act 2000;

the “Authority” means the body corporate previously known as the Financial

Services Authority and renamed on 1 April 2013 as the Financial Conduct

Authority;

the “Board” means the Rio Tinto board of directors;

“CGU” means Cash Generating Unit. A CGU is the smallest identifiable group of

assets that generates cash inflows that are largely independent of the cash

inflows from other assets or groups of assets;

the “Controllers” means Rio Tinto Controllers;

“Controllers Manual” means internal Rio Tinto guidance for Controllers;

“DEPP” means the Authority’s Decision Procedures and Penalties Manual;

“DTR” means the Disclosure and Transparency Rules;

“E&E” means exploration and evaluation;

“EG” means the Authority’s Enforcement Guide;

“ESIA” means Environmental and Social Impact Assessment;

“GoM” means the Government of the Republic of Mozambique;

The “Handbook” means the Authority’s Handbook of rules and guidance;

“HY2012” means the six month interim financial period ended 30 June 2012;

“IAS” means the International Accounting Standards;

“IFRS” means the International Financial Reporting Standards;

“mtpa” means million metric tonnes per annum;

“NPV” means Net Present Value. The discounted cash flow (DCF) method of

valuation is an income based approach to assessing the value of an asset or group

of assets. An income based approach to valuation provides an indication of value

by converting future cash flows to a single current value. Under the DCF method,

the forecasted cash flows are discounted back to the valuation date, resulting in a

net present value (NPV) of the asset. In this notice, the NPV calculation is the

output of a DCF valuation;

“PEG” means Project Evaluation Guidelines. It is the view on commodity prices

produced internally within the Economics department at Rio Tinto;

“Product Group” means an entity overseeing commodity sectors within Rio Tinto;

“Relevant Period” means the period from 29 May 2012 to 8 August 2012;

“Rio Tinto” means Rio Tinto plc;

“Riversdale” means Riversdale Mining Limited;

“RTCM” means Rio Tinto Coal Mozambique;

“RTE” means Rio Tinto Energy;

“SPP” means strategic planning process;

“T&I” means Rio Tinto’s Technology and Innovation Group;

“the Tribunal” means the Upper Tribunal (Tax and Chancery Chamber); and

“YE2011” means the annual financial period ended 31 December 2011.

4.
FACTS AND MATTERS

Requirements of the IFRS

4.1.
IFRS are the standards issued by the International Accounting Standards Board

(or its predecessor) and include standards referred to as either IAS or IFRS. The

relevant standards in relation to this matter are summarised in Annex A.

4.2.
IAS 34 prescribes the minimum content of an interim financial report and the

principles for recognition and measurement in complete or condensed financial

statements for an interim period. It requires the inclusion of significant events

which include recognition of a loss from the impairment of assets.

4.3.
The requirements for impairments are governed by IAS 36, the objective of which

is to ensure that assets are carried at no more than the recoverable amount and,

if they are not, that an impairment loss is recognised. IAS 36 requires that an

assessment is made at the end of each reporting period, including at the time of

interim financial statements, of whether there is any indication that an asset may

be impaired. If there is such an indicator, IAS 36 requires an estimation of the

recoverable amount to be made (“an impairment test”).

4.4.
IAS 36 includes a non-exhaustive list of indicators that an asset may be impaired

that should be considered “as a minimum” including a variety of both internal and

external factors.

4.5.
The Rio Tinto group is an international mining group headquartered in the United

Kingdom, combining Rio Tinto Plc, quoted on the London Stock Exchange and Rio

Tinto Limited, which is listed on the Australian Securities Exchange. Rio Tinto Plc

also lists American Depository Receipts on the New York Stock Exchange. During

the Relevant Period Rio Tinto Plc had an average market capitalisation of

approximately £41.7 billion (US$64.3 billion), making it one of the largest mining

companies in the world.

4.6.
Rio Tinto acquired 100% of the shares of Riversdale for approximately US$3.7

billion by August 2011. Riversdale, a mining company, was publicly listed on the

Australian Securities Exchange and held coal mining interests in Mozambique.

RTE, a Product Group of Rio Tinto at that time which was responsible for the

company’s coal and uranium Business Units, led the acquisition. Its Coal

Development Group had identified Riversdale’s assets in Mozambique as the

largest remaining coking coal opportunity in the world.

4.7.
Riversdale’s assets comprised three main areas — Benga (a largely undeveloped

ore body on which Riversdale was developing a small starter mine) as well as

Zambeze and Tete East which were both undeveloped exploration areas. The

acquisition included 65% of Benga (as Riversdale only owned 65%) with the

remaining share being owned by a separate company unrelated to Rio Tinto.

4.8.
After acquisition, Rio Tinto referred to Riversdale as RTCM and defined it as a CGU

which included approximately US$1.8 billion of intangible assets (related to the

assets of Zambeze and Tete East which were E&E assets) and approximately

US$1.8 billion of “investments in equity accounted units” related to the assets of

Benga. The underlying assets of Benga consisted of mainly E&E assets, but

because it was an equity accounted unit under IAS Benga was a financial asset

rather than an E&E asset. The CGU also included US$530 million of goodwill.

4.9.
Under IAS 34, at each reporting period (including interim) Rio Tinto was required

to assess whether any indicators of impairment existed relating to RTCM and, if

so, to carry out an impairment test.

Rio Tinto’s group structure

4.10. Rio Tinto contained five Product Groups which were organised based on the type

of raw materials they extracted or processed. RTCM was defined by Rio Tinto as a

Business Unit and was allocated to the RTE Product Group. Therefore, RTCM

reported to RTE which in turn reported to Rio Tinto.

4.11. Rio Tinto’s Audit Committee reported to the Board and its responsibilities included

the review of accounting principles adopted in the preparation of public financial

information and the review with management and external auditors of compliance

with financial reporting standards. The Audit Committee consisted of Non-

Executive Directors but was also attended by certain executive directors.

4.12. The Controllers Group operated within Rio Tinto group in the UK and was

responsible for external reporting (including annual and half year financial

statements and their compliance with IFRS), planning and budgeting and internal

reporting and management accounts. This role included, among other things, co-

ordinating and overseeing impairment reviews and preparing Audit Committee

papers.

Rio Tinto’s half year financial reporting process

4.13. Rio Tinto’s financial year matched the calendar year. Prior to half-year interim

financial reporting, Rio Tinto required Business Units such as RTCM to submit

papers which included a discussion of the Business Unit’s review of potential

impairment indicators. The Business Units were supported by the relevant Product

Groups such as RTE. Controllers then analysed the potential impairments at CGU

level and presented the results of this work to the Audit Committee, initially in

June, to flag any potential impairment indicators (referred to by Rio Tinto as

‘triggers’) and then again in July to present the final assessments of impairment

indicators.

4.14. The Rio Tinto Controllers Manual outlined the process by which Rio Tinto assessed

impairment triggers and carried out impairment tests. The manual used the term

“asset” for both individual assets and CGUs. The manual stated that “[i]f there are

material changes in circumstances during the first half of the financial year (but

after publication of the year-end accounts) that may be expected to give rise to

impairment, it may be necessary to obtain revised valuations from [Business

Units] in the run up to the Group’s half year results announcement”.

4.15. The responsibility for identifying impairments resided with the Business Units who

were required to assess whether indicators existed and notify Controllers if this

was the case. The Controllers Manual gave examples of indicators that should be

considered as a ‘minimum’, which largely mirrored the examples in IAS 36

paragraph 12. The Controllers Manual set out that if any of these factors existed,

“a formal estimate of the recoverable amount of any assets of CGUs that appear

to have been impacted materially must be prepared” (emphasis added). These

examples of indicators included:

(a)
significant changes that are likely to have an adverse effect in the

technological, legal or economic environments in which the entity

operates, or in the market to which an asset is dedicated;

(b)
significant changes to the extent or manner of use of the asset that

are likely to have an adverse effect on its recoverable value,

including restructuring or discontinuation of use; and

(c)
indications that the economic performance of an asset is, or will be,

significantly worse than expected.

Due diligence and acquisition of Riversdale

4.16. In August 2010, RTE provided a paper on the Riversdale acquisition to Rio Tinto’s

Investment Committee. This paper stated that the valuation of Riversdale was

US$3.4 billion, an 80% premium to the market capitalisation, based on factors

including the potential to transport up to between 30mpta to 45mpta of coal by

barging it 540km down the Zambezi river to the coast for shipping to market.

4.17. The RTE document was supported by papers from internal Rio Tinto technical and

business evaluation divisions. These papers highlighted that RTE was only in the

initial stages of assessing a development strategy and it was possible that

significant valuation challenges could occur. They highlighted that valuation was

based on the crucial assumption that the majority of the coal product could be

barged down the Zambezi river, that project infrastructure was very uncertain,

and that RTE’s assumed ramp up (i.e. speed of development) appeared to be

optimistic.

4.18. In November 2010, a further RTE paper was submitted to Rio Tinto’s Investment

Committee which confirmed barging as, in theory, a viable option representing a

lower cost long term solution. However, this paper was supported by a further

technical assessment which identified various risks to the assumptions supporting

the valuation of Riversdale, including the uncertainty relating to the underlying

assets and the practical viability of barging. It also highlighted that projected

development plans beyond only the Benga mine were based on the assumption of

a barging operation to export the coal.

4.19. In December 2010, the Investment Committee and then the Rio Tinto Board of

Directors approved the proposal to acquire Riversdale. On 8 April 2011, Rio Tinto

acquired a controlling interest in Riversdale and continued to increase its interest

in the months that followed until it held 100% ownership by 1 August 2011.

Issues identified for RTCM prior to YE2011

Early valuations of RTCM

4.20. In late 2011, Rio Tinto decided to include in its planning for RTCM the potential

volumes expected to be produced at Minjova, an adjacent potential coal mining

area that, while not part of the Riversdale transaction, was also owned by Rio

Tinto. Like the Zambeze and Tete East tenements, limited resource information

was available for Minjova at the time.

4.21. Also in late 2011, RTE and RTCM identified that 10mtpa was likely to be the

maximum amount of coal that could be transported by barging, rather than the

30mtpa (by 2030) assumed at acquisition. It was on the basis of a maximum of

10mtpa that Rio Tinto had in September submitted an Environmental and Social

Impact Assessment (“ESIA”) submission to the GoM for permission to barge down

the Zambezi river. This left 20mtpa that would need to be transported by other

potentially higher cost solutions.

4.22. RTCM subsequently presented an NPV of US$4.9 billion in November of 2011

(after the inclusion of Minjova) as part of Rio Tinto’s annual planning process. This

included approximately US$2 billion in lost value due to infrastructure problems,

although this was said to be more than offset by an expected increase in PEG

prices resulting in a valuation above carrying value. When RTE management

queried this reduction in valuation attributable to the infrastructure problems,

RTCM clarified that this was caused by projected infrastructure costs that were

potentially far greater than that assumed at acquisition because of an expected

reduced – although still significant – capacity for barging and the likelihood that

RTCM would need to rely on more expensive upgrades of existing rail and port

capacity or develop expensive “greenfield” (i.e. new) infrastructure solutions.

Initial rejection of barging transport option

4.23. By the end of November 2011, RTCM was aware that the GoM intended to issue a

denial of RTCM’s ESIA submission. This decision appears to have taken RTCM by

surprise. The formal rejection letter from the GoM dated 14 December 2011

reached Rio Tinto in January 2012.

4.24. Rio Tinto senior management indicated to RTCM that the decision on barging was

a “[m]ajor disappointment on infrastructure capacity” and highlighted the “need

to look for faster capacity increase and barging success” because barging was

“critical to cost effective and near term volume/value unlocking”.

4.25. From early December 2011, Rio Tinto decided to try to pursue with the GoM the

option of an integrated transportation system for coal production which included

rail and port in addition to barging.

Early 2012 write down in expected Reserves & Resources

4.26. After the acquisition, Rio Tinto began the testing necessary to confirm the

reserves and resources at the different mines that comprised RTCM’s assets. Rio

Tinto had expected that its own testing methodology would reveal that the

reserves and resources would be significantly lower than what had previously

been declared by Riversdale. However, by December 2011 it was clear that the

result was significantly worse than had been anticipated at the time of the

acquisition. The Zambeze resource was revised down to approximately 22%, the

Benga resource to approximately 25%, and the Benga reserve to 50%, of the

reserves which had been stated by Riversdale in 2010.

4.27. On 6 February 2012, the Audit Committee was informed that reported reserves

and resources would be significantly lower than anticipated at acquisition, but

were also informed that these would still be “substantial and able to underpin the

significant growth planned by RTCM”. Significant drilling and testing continued

throughout 2012 to determine the extent and quality of the ore body.

The deteriorating picture for RTCM leading up to HY2012

Negative NPV calculations and a further rejection of barging

4.28. There were, however, further negative signs in relation to the value of RTCM from

a relatively early stage in 2012. For example, a monthly update from RTCM to

RTE in March 2012 stated that, due to changes from the acquisition model in

assumptions and capital costs required, estimated to be in excess of US$10

billion, a “negative overall value” resulted.

4.29. The GoM again rejected the barging element of RTCM’s proposed integrated

transportation system at a meeting with RTCM management on 18 April 2012. An

RTCM manager described the outcome of the meeting in the following terms “the

government again rejected the notion of barging coal on the Zambezi river, and

made it absolutely clear to me that they did not wish to have the barging matter

raised again with government. So effectively that meeting killed dead the bid

model that had been developed for the acquisition of Riversdale”.

4.30. By April 2012, RTCM was developing a “bottom up order of magnitude assessment

of RTCM business value” which led to internal modelling indicating possible

negative NPVs for RTCM. By early May 2012 the NPV estimated by RTCM, which

did not include any barging as a coal transportation option, was negative US$680

million. The negative NPVs were said to be due to a “number of prejudicial

developments” resulting in updated assumptions being used in the valuation

models, particularly in relation to the capital costs required to develop the mines,

including the cost to transport more than 10mtpa of coal from the mines without

being able to use river barging to the extent envisaged in the acquisition model.

Meeting in Brisbane on 11 May 2012

4.31. On 11 May 2012 a meeting took place in Brisbane attended by senior

representatives from RTCM, RTE and Rio Tinto (“the Brisbane meeting”). The

purpose of this meeting was to discuss the progress of the RTCM project, in

comparison with the progress that had been expected at acquisition. At the

meeting the key issues relating to RTCM were fully aired, including that:

(a)
the acquisition assumptions on infrastructure ramp up and barging

were “brave” and were by then a “moot point as barging has been

rejected by the Government” and the Government was unlikely to

change its position;

(b)
coal production was “infrastructure constrained”. Additional rail

capacity on existing lines was unlikely to exceed 10mtpa by 2018

and a greenfield rail and port development, which could only be in

place by 2018 at the earliest, was “the only way of delivering

substantially higher transport capacity at competitive cost”;

(c)
updated adverse information related to coal resource characteristics

had a “negative impact on value", ramp up production delays were

a “huge value loss” and higher than anticipated costs for moving

the coal had a “negative impact on valuation”; and

(d)
applying the development model which RTCM considered would

deliver the most positive outcome for the project, which required

considerable capital expenditure, the “indicative” NPV of RTCM was

negative US$680 million.

4.32. Possible positive medium and long-term outcomes for RTCM were presented at

the meeting which explored in detail RTCM’s considerable challenges. It was

explained that RTCM was in the process of undergoing several analyses to

evaluate potential future pathways for the business and that, over the life of the

mine, it may have very strong future cash flows. However, it was also made clear

to senior management that critical assumptions made at acquisition could no

longer be sustained. At the conclusion of the meeting, senior management

explained to RTCM that, in light of the then current capital constraints on the Rio

Tinto group in general, there was no appetite for very large capital spends on

RTCM. It was suggested to RTCM that it should minimise its capital exposure over

the coming years by reducing the rate at which the business was developed.

RTCM should establish the smaller Benga operation first, minimising costs and

pursuing partnership options for funding.

Half year 2012 impairment considerations by RTCM, RTE and Rio Tinto

4.33. As part of Rio Tinto’s usual business planning cycle RTCM was required to submit

a range of valuations as at 1 July 2012 covering various approaches to project

development; “committed”, “probable” and “possible” approaches, combined with

differing economic scenarios which factored in different possible future PEG prices.

“Probable” projects were defined as those “considered the most likely business

unit development pipeline” and the “base case” was defined as the “committed”

and the “probable” scenarios combined.

4.34. RTCM initially proposed that the base case in the Business Plan would include only

the Benga mine (and an associated power plant), as the Zambeze, Tete East and

Minjova projects required a new greenfield rail and port system which would

require very large capital outlays which had not been sanctioned.

4.35. By 15 May 2012, the Controllers were made aware of certain issues that had been

raised at the Brisbane meeting; namely that barging faced “formidable practical

challenges” and did not “have political support”, and that significant new rail and

port development was “required to unlock the full coal production potential”. The

Controllers were also made aware that there had been a significant downgrade in

reserves and resources. The Controllers began to consider the possibility of

impairment of RTCM at half year 2012. However they also began to consider

whether, given that a mandatory impairment review of RTCM would be required in

September and October with or without an impairment “trigger”, it was still too

early in the planning for the life of the project to consider impairment.

4.36. By 23 May 2012, RTE considered that RTCM should not submit a new valuation for

the end of second quarter 2012 (“Q2”) but should instead assess value using the

original acquisition model. A further email of 25 May suggests this is in order “to

hold value”.

4.37. However, the acquisition model had assumed barging to be the key method of

transporting coal. As a further email of 29 May from one controller notes, this had

of necessity been “completely abandoned (for now)”, following “a clear message

[from the Mozambique government] to Rio… to abandon the barging idea or lose

the right to mine in Mozambique”. Later that day, another controller commented

that the circumstances set out in this email appeared to constitute a “hard

trigger” for impairment.

4.38. The previous day, 28 May 2012, the Controllers had considered the matter with

RTCM and expressed concern that they would not be able to convince the Audit

Committee that a detailed revised valuation was not necessary at half year 2012.

The Controllers said that “it seems likely we will need to raise the change in

circumstances to the Group Audit Committee (mid-June) as a possible impairment

trigger” and requested from RTCM a “range of valuations based on the options

internally”, even if probability weighted and to the nearest billion dollars. They

further advised that “depending on the magnitude of any potential shortfall

between book value and estimated fair value we may have to do further work

either to support the book value or calculate a shortfall to write off”.

4.39. However, on 29 May 2012, and following a call between Controllers and RTE and

RTCM finance staff, it appeared that a different approach had been agreed for the

approach to the Audit Committee. This approach involved RTE and RTCM drafting

a paper on RTCM impairment indicators (the “Impairment Paper”) which would

advocate that the identified issues did not constitute an impairment indicator on

the basis of “the early stage of planning for the project, the fact that this is a

recent acquisition, and other market indicators of value”.

4.40. The first Rio Tinto Audit Committee meeting for half year took place on 18 June

2012, and included a Paper on Accounting Issues (the “18 June Paper”). The

paper highlighted “some uncertainty” around coal transportation and stated that

“[e]nvironmental concerns have been raised by the Government in connection

with the proposed barging operation. While barging has not been entirely ruled

out in the future, it seems unlikely that the situation will be resolved in the short

term. A number of options are available, including incremental capacity on the

existing rail lines, greenfield rail and port development (independently owned or

shared development) and revised partial barging options”. The paper then

concludes “[o]n balance, while there may be potential indicators for the need to

consider impairment at half year, it is not expected that any impairment will need

to be recorded as it is too early to assess the impact of the developments on the

fair value of the projects”.

4.41. Therefore, although the Audit Committee were told that the GoM had raised

environmental concerns regarding barging which were unlikely to be resolved in

the short term and which might represent an impairment trigger, in the 18 June

Paper it was not made clear that the GoM had issued a second, and emphatic,

rejection of any barging proposal whatsoever and that RTCM accordingly

considered it essential to completely abandon all barging proposals at least for the

time being. Furthermore the Audit Committee were not informed that extensive

internal modelling of options which excluded barging had led to multiple specific

negative NPV figures for RTCM, the earliest of which dated back to at least March

2012.

The consideration of RTCM after the June Audit Committee leading up to HY2012

4.42. After the June Audit Committee meeting, senior employees of RTE and RTCM

discussed current and future business valuations of RTCM. One senior employee

expressed the view that preparations for a mandatory full year impairment review

would need to be completed in September. The employee noted that current

business valuations were a “significant departure” from what was anticipated at

acquisition and that “we need to properly put to rest the comparison to the

acquisition assumptions”.

4.43. In a separate conversation another RTE employee advised another RTCM

employee that “there will definitely be an impairment review of RTCM at year end”

(which in this context appears to be the full year impairment review in

September), but that, in relation to whether an impairment test was required

imminently, “[t]he work we have done already with controllers should get us close

to the solution for half year”.

4.44. On 20 June 2012, RTCM submitted a May 2012 monthly report to RTE which

stated that “[b]ottom-up business analysis and value optimisation work continued

to improve RTCM system value. NPV now stands around zero for the four-mine,

BPP and 75Mtpa infrastructure corridor scenario under current PEG and cost

assumptions”.

4.45. The following day, RTE circulated a further draft presentation titled “Rio Tinto

Energy Five Year Business Plan 2012-2017”. This was a consolidated plan, taking

into account all of the separate Business Plans from the Business Units within the

RTE Product Group. Included within this plan was a “BU Valuation” table showing

the values assigned to each Business Unit in the committed, probable and

possible scenarios. The central probable scenario was stated as US$3.5 billion

with a note stating “RTCM Probable Valuation remain [sic] based on acquisition

valuation”. However the document did not make clear on what basis the

acquisition valuation was considered justifiable as a central case.

4.46. By 24 June 2012 a decision appears to have been made to use a vastly lower

central probable value for RTCM of negative US$0.2 billion (with the ‘possible’

valuation as US$3.5 billion). An RTE analyst commented that this was

“catastrophic for the central valuation [of RTE]”. On 27 June, the RTE presentation

was submitted to the Controllers with the negative US$0.2 billion central probable

valuation included and the same figure was then also included in a draft RTE

paper to the Controllers titled “Plan Review Committee Meeting – Product Group

Q2F Five Year Business Plan Submission” (although these same documents then

appear to have been later resubmitted with the valuation figures removed from

the RTE presentation but still included in the version of the RTE paper).

4.47. On 27 June 2012, the Controllers sent a further draft of the Impairment Paper to

RTE. This draft paper stated “[i]t is acknowledged that the changed circumstances

could give rise to an impairment trigger, but this is not yet certain because it is

not possible to assess whether the economic performance will be worse than

expected”. In relation to current valuations, it stated “[i]t is not possible to

provide a proper valuation of RTCM to an acceptable degree of accuracy while the

options remain at such an early stage of review. A valuation that only includes

the items considered probable will omit value that is present but has not been

fully quantified; this value would be attributed to RTCM by a market participant.

The level of uncertainty also prohibits calculation of an accurate probability

weighted valuation”.

4.48. The paper then considered three types of analysis to “give some indication of the

value of RTCM”. All three of these appeared to be based on the assumptions

(including barging) used in the acquisition model, with a two year delay on the

production date factored in (reducing valuation by approximately US$1 billion)

along with updated assumptions for PEG prices, inflation and foreign exchange

(increasing value by approximately US$3 billion).

4.49. A draft of the impairment paper dated 16 July 2012 contained an “assessment of

impairment indicators for RTCM in line with RT policy” and assessed potential IAS

36 indicators in detail before concluding that, “[a]n assessment of impairment

indicators has been performed for RTCM. Overall, we do not believe that there is

an impairment indicator”. This was purportedly justified on the basis that,

although there were known uncertainties relating to infrastructure problems, the

central case was still under development and Rio Tinto were confident of finding a

viable path. It was further purportedly justified on the basis that, current and

expected PEG prices and the inclusion of Minjova produced a valuation for RTCM

which if based on acquisition assumptions exceeded its carrying amount.

4.50. The conclusions from the impairment paper were reflected in the paper on

accounting issues that was provided for the Audit Committee for its meeting on

30 July 2012, albeit briefly; despite the complexity of the issues concerned, and

despite the extensive debate that had taken place between RTCM, RTE and the

Controllers on how best to characterise those issues, the Audit Committee paper

contains only two small paragraphs relating to RTCM. The first stated that an

assessment of impairment indicators had been performed and that, although it

was acknowledged that there was uncertainty over future transportation, Rio

Tinto were confident of finding a viable infrastructure path and that the “breadth

of the options” meant that a central case was still under development, and

therefore no indicator existed. The second paragraph simply repeated the (flawed)

basis for valuing RTCM using the acquisition assumptions.

4.51. On 8 August 2012, Rio Tinto released its half year results which did not include an

impairment to the value of RTCM. The published results made no reference to the

impairment indicators for RTCM, including that barging would not be permitted

leading to either significantly higher capital costs or significantly lower production

of coal, and that internal information available at that time produced negative

valuations.

Events leading to recognition of an impairment on 17 January 2013

4.52. In August 2012, a Strategic Planning Process (“SPP”) was begun for RTCM. The

SPP team was situated within Rio Tinto’s Technology and Innovation Group

(“T&I”) and its purpose was to find the best strategic development path for parts

of the business which would benefit from assistance in analysing strategic

options. RTCM had initially approached the SPP team in March 2012, and in

August 2012 that team visited Mozambique to begin their work.

4.53. By late November 2012, it had become clear that the results of the SPP work

being carried out by T&I were generally negative and tended to suggest that only

Benga had any value for RTCM with many of the development plans being

economically unviable. This was consistent in key respects with some of the

earlier work carried out by RTCM itself during the HY2012 process but which had

been effectively discounted for impairment purposes on the purported basis that

the situation remained too uncertain to be properly quantified.

4.54. At this stage RTCM remained unimpaired. No full year goodwill impairment review

of RTCM as envisaged at half year had, in fact, been completed in September

2012. On 26 November 2012, an Audit Committee meeting took place where

RTCM was discussed. The minutes of the 26 November meeting noted the Audit

Committee’s concern at the “limited impairment headroom” for RTCM, but that

management had advised that this was “expected given the relatively recent

acquisition of RTCM”.

4.55. During December 2012, Rio Tinto received updated reporting on the reserves and

resources for the mines, and in particular for Minjova, which concluded that much

of the coal would be uneconomic to extract. The updated information resulted in a

large proportion of the potential volumes being removed from the estimates of

RTCM’s future coal production. Internal analysis, which was carried out to

establish the effect this would have on the value of RTCM, finally led Rio Tinto to a

formal
revised
downward
valuation
of
RTCM
to
US$611
million
from

approximately US$3.5 billion.

4.56. On 17 January 2013, Rio Tinto announced that it was to record an impairment of

US$3 billion against its 2012 earnings in relation to RTCM. Rio Tinto attributed

this step to new information revising downwards the estimates of recoverable

coking coal volumes and a reassessment of the overall scale that the business

could achieve. It also highlighted that RTCM coal production was infrastructure

constrained and that barging had not received formal approvals.

5.
FAILINGS

5.1.
The failure to conduct an impairment test and recognise an impairment to the

carrying value of RTCM in its HY2012 financial reporting (published 8 August

2012), resulted in Rio Tinto breaching the Authority’s Disclosure and

Transparency Rules as in force at the time of the breach: (i) DTR 1.3.4R and (ii)

DTR 4.2.4R(1). These breaches are discussed below and the provisions referenced

below are set out in full at Annex A to this Notice.

5.2.
DTR 4.2.2R requires issuers to make public a half-yearly financial report covering

the first 6 months of the financial year.

5.3.
DTR 4.2.4R(1) states: If an issuer is required to prepare consolidated accounts,

the condensed set of financial statements must be prepared in accordance with

IAS 34. As a parent entity, Rio Tinto is required to present consolidated accounts

under IFRS 10.

5.4.
IAS 34 requires that interim financial statements recognise losses from the

impairment of assets and comply with IAS 36 which states that “[a]n entity shall

assess at the end of each reporting period whether there is any indication that an

asset may be impaired. If any such indication exists, the entity shall estimate the

recoverable amount of the asset” (emphasis added).

5.5.
Rio Tinto did not comply with IAS 36 by failing to:

(a)
recognise that indicators of impairment which existed for RTCM at

the time of HY2012 required it to conduct an assessment of whether

the recoverable amount of RTCM was greater than the carrying

value; and

(b)
recognise a material impairment loss to RTCM in its HY2012 interim

financial reporting.

5.6.
At HY2012, impairment indicators existed which, in accordance with IAS 36 (and

Rio Tinto’s own Controllers Manual), both individually or collectively, required Rio

Tinto to carry out an impairment test for RTCM as a CGU as at 30 June 2012.

5.7.
Under IAS 36, various categories of indicators are set out. These include

significant changes in the technological, economic or legal environment; or in the

extent or manner in which the relevant assets were expected to be used; or which

gave rise to significantly higher cash flows than were originally budgeted. Each of

the following factors, present at HY2012, fell into one or more of those categories:

(a)
the rejection by the GoM making it clear that barging would not be

permitted;

(b)
the significant additional capital expenditure which would be

associated with developing an alternative rail and port solution; and

(c)
the restrictions which that alternative solution would impose on coal

production and subsequent cash flows.

5.8.
Furthermore,
there
had
been
significant
downgrading
of
the
resource

characteristics of the RTCM mines. This was significantly greater than the

downgrading which had been anticipated at acquisition, and was an indicator of

impairment both under IAS 36 and – as a material change in the estimates of

proven and probable ore reserves – under the Controllers Manual.

5.9.
Furthermore, documents show that multiple assessments of RTCM’s NPV carried

out internally by Rio Tinto prior to HY2012, taking into account some or all of the

above factors, resulted in figures dramatically lower than the carrying value,

including negative NPVs. This constituted evidence derived from internal reporting

that the economic performance of RTCM would be worse than expected which is

also an indicator of impairment under both IAS 36 and the Controllers Manual.

5.10. Although the Controllers acknowledged in the HY2012 papers submitted to Rio

Tinto’s Audit Committee that impairment indicators for RTCM may exist, the Audit

Committee did not have those indicators set out to them clearly. This could have

been done briefly, as set out above, and was essential for that Audit Committee to

fully consider their potential implications for the value of RTCM. Instead, far too

heavy reliance was placed in those papers on supposed lack of clarity around the

strategic options for RTCM going forward, in particular in relation to the coal

chain, which purportedly meant that it was not possible to assess the impact on

RTCM. This reliance by Rio Tinto was wrong.

5.11. IFRS does not recognise uncertainty as a reason in itself not to carry out an

impairment review. The Conceptual Framework for Financial Reporting, which sets

out the key concepts which underlie the preparation of financial statements,

explains that “…the uncertainties that inevitably surround many events and

circumstances… are recognised by the disclosure of their nature and extent and by

the exercise of prudence... Prudence is the inclusion of a degree of caution in the

exercise of the judgements needed in making the estimates required under

conditions of uncertainty, such that assets or income are not overstated and

liabilities and expenses are not understated.”

5.12. Therefore, to manage uncertainty in compliance with IFRS, Rio Tinto should have

incorporated it into an impairment review by using reasonable and supportable

assumptions that represent management’s best estimate, or by weighting

outcomes by probability. This was not done.

5.13. Furthermore, on 28 May 2012, when first considering in detail the question of

potential impairment of RTCM for HY2012, Rio Tinto’s Controllers had discussed

among themselves a process using best estimates of value on a risk weighted

basis which, had it been followed, would have been more likely to ensure that

impairment indicators were properly recognised and a calculation of a formal

estimate of the recoverable amount conducted. The Controllers appeared explicitly

to recognise that it was necessary to have such estimates for the purpose of

articulating and quantifying the extent of any problem, even if the estimates were

only approximate.

5.14. However, the papers eventually provided to the Audit Committee relied instead on

generalities, as set out above, and do not contain any such analysis or

quantification. As a result the Audit Committee was not provided with highly

pertinent information including how the best available modelling at that time

indicated RTCM had a negative value. The Authority considers this to have been a

serious misjudgement by Rio Tinto in relation to its proper management of its

financial reporting.

5.15. For all these reasons Rio Tinto, by failing to recognise impairment indicators and

calculate a formal estimate of the recoverable amount at the time of HY2012, did

not prepare its HY2012 accounts in accordance with the relevant accounting

standards and thus breached DTR 4.2.4R(1).

5.16. DTR 1.3.4R states: An issuer must take all reasonable care to ensure that any

information it notifies to a RIS is not misleading, false or deceptive and does not

omit anything likely to affect the import of the information.

5.17. As set out above, despite the existence of indicators of impairment at HY2012, Rio

Tinto failed to conduct a formal estimate of the recoverable amount of RTCM to

assess whether the value was materially below its carrying value (which by the

time of HY2012 was US$3.55 billion).

5.18. Had it done so, as it was obliged to do, using reasonable and supportable

assumptions, the value would have been materially below that carrying value and

Rio Tinto would have been obliged to record an impairment in its HY2012

accounts.

5.19. Therefore, Rio Tinto failed to take reasonable care that its interim financial report

for HY 2012 was accurate and included everything of import.

The impairment that should have been recognised at HY2012

5.20. Rio Tinto’s external auditor calculated the materiality figure (the amount that the

auditor considered would present a risk of ‘material misstatement’ of Rio Tinto’s

financial statements) for Rio Tinto at 18 June 2012 as US$500 million. At HY2012,

the external auditor calculated this figure as US$250 million based on half of the

full year materiality. Therefore, the Authority considers that an impairment of

US$250 million or greater would be material to the interim financial statements.

Rio Tinto’s Controllers Manual, in relation to the existence of impairment

indicator, states that “a formal estimate of the recoverable amount of any assets

or CGUs that appear to have been impacted materially must be prepared”

(emphasis added).

5.21. The calculation of the recoverable amount would have involved an estimation

using the higher of either the “value in use” (“VIU”) or “fair value less cost to sell”

(“FVLCS”) of RTCM. In this case the Authority has determined that it is likely that

Rio Tinto would have used FVLCS as a basis for the calculation, using a

Discounted Cash Flow analysis (“DCF”) which incorporated the best information

available. DCFs are based on the theory that the value of an asset equates to the

present value of its expected future free cash flows at the date of valuation. In

order to calculate the value of a mineral property using a DCF, the future free

cash flows of the mine over the life of the mine are estimated and are then

discounted to the valuation date.

5.22. In the absence of Rio Tinto having produced its own assessment of the

recoverable amount of RTCM prior to the issuance of the HY2012 Interim Financial

Statements, we consider it reasonable to refer to NPV calculations produced by

Rio Tinto using DCF analysis that appears to be based upon management’s best

estimates of the conditions that existed for RTCM as at 30 June 2012. The

Authority has determined that the financial model used in the May 2012 NPV

calculation of negative US$680 million provides a reasonable basis for the

assessment of the recoverable amount at HY2012.

5.23. The Authority considers that the key assumptions used to generate the May 2012

NPV value of negative US$680 million, namely that there would be a slower

increase in production of coal and significant increase in capital expenditure as a

result of the coal transportation infrastructure issues (particularly barging), could

not be reasonably adjusted to lead to a recoverable amount for RTCM that was

not materially below its carrying value. Any principle mitigating factors could also

not prevent the calculated value being significantly below carrying value.

5.24. Therefore, the Authority considers that, using the May 2012 NPV as a basis for

assessing the recoverable amount of the RTCM assets prior to issuance of Rio

Tinto’s 2012 Interim Financial Statements, a material impairment was required.

5.25. The facts and matters behind the impairment indicators described at paragraph

5.7 above were known to RTCM, RTE and Rio Tinto’s Controllers in May/June 2012

and were considered in preparation at that time of the Impairment Paper,

Business Plan and the papers for the Audit Committee meeting on 18 June 2012.

However, as recorded in these papers, despite knowing these facts and matters

Rio Tinto decided not to recognise an impairment or even carry out an impairment

review of RTCM at that time. The Authority finds that Rio Tinto did not therefore

take reasonable care in its consideration of this issue.

5.26. By failing to recognise a material impairment at HY2012, via its published interim

statements and accompanying Regulatory Information Service announcement Rio

Tinto not only failed to take reasonable care but in fact released to the market

information which omitted matters of import because its reporting of first half-

year underlying earnings contained materially inaccurate information regarding

the value of RTCM.

6.
SANCTION

Financial penalty

6.1.
The Authority’s policy for imposing a financial penalty is set out in Chapter 6 of

DEPP. In determining the appropriate financial penalty, the Authority has had

regard to Chapter 6 of DEPP.

6.2.
The total financial penalty which the Authority has decided to impose on Rio Tinto

is £27,385,400. In summary this penalty is calculated as follows.

Step 1 – Disgorgement

6.3.
Pursuant to DEPP 6.5A.1, at Step 1, the Authority seeks to deprive a firm of the

financial benefit derived directly from the breach. Rio Tinto did not derive any

financial benefit from the breaches and so there is no amount subject to

disgorgement.

Step 2 – Seriousness of the breach

6.4.
Pursuant to DEPP 6.5A.2G at Step 2, the Authority determines a figure that

reflects the seriousness of the breach. Where the amount of revenue generated by

a firm from a particular product line or business area is indicative of the harm or

potential harm that its breach may cause, that figure will be based on a

percentage of the firm’s revenue from the relevant products or business area.

6.5.
However, in this case, the Authority considers that the revenue generated by Rio

Tinto is not an appropriate indicator as it does not reflect the harm or risk of harm

resulting from Rio Tinto’s breaches.

6.6.
The Authority considers the appropriate indicator is Rio Tinto’s average daily

market capitalisation, as it relates to its UK listing, throughout the period of the

breach as it reflects the harm or risk of harm resulting from the breaches. The

Authority considers that the period of the breaches is the date Rio Tinto began to

fail to take “reasonable care” in relation to its consideration of RTCM’s impairment

issues on 29 May 2012, until the date the HY2012 interim financial reporting was

made on 8 August 2012 which omitted an impairment to RTCM. Rio Tinto’s

average daily market capitalisation in relation to its UK listing over this period is

£41,730,140,520.

6.7.
The Authority considers that a scale of 0-0.5% of market capitalisation (applied

according to the seriousness of the breach) is appropriate in order that the

penalty properly reflects the seriousness of the breach.

Level of seriousness

6.8.
In assessing the seriousness level for the purpose of penalty, the Authority takes

into account various factors which reflect the impact and nature of the breach.

Impact of the breach

6.9.
These failings are serious as Rio Tinto is one of the UK’s biggest issuers, with a

wide shareholder base and a very significant asset-base and significant resources

at its disposal. A failure by large listed companies to account properly for

impairments clearly creates a significant risk that harm could be caused through

investment decisions being made on the basis of incorrect information. Rio Tinto

failed to prevent misleading information being released to the market and created

a risk of harm to consumers.

Nature of the breach

6.10. The breach continued for between two and three months during the period

leading up to and including HY2012 reporting on 8 August 2012. However the

Authority considers that the duration of the breach is of secondary importance

compared to the impact or potential impact of Rio Tinto’s published financial

information being materially inaccurate for over five months until the recording of

the impairment on 17 January 2013.

6.11. The failure to impair RTCM related to one Business Unit of Rio Tinto and was not a

systemic or widespread failure. The Authority has not found that Rio Tinto knew

that it needed to impair RTCM but failed to do so. However, for the reasons

outlined above, a failure to properly consider and report all relevant and

important information relating to possible impairment matters through Rio Tinto’s

processes for financial reporting, which exist to ensure the accuracy of the

financial information being reported, is a serious matter. Furthermore, the

Authority does not view this as merely the result of a flawed process; there were

serious misjudgements by Rio Tinto which contributed to the failure.

6.12. The Authority therefore considers the seriousness of the breaches to be level 2.

Therefore the Step 2 figure is 0.125% of £41,730,140,520 or £52,162,676.

6.13. DEPP 6.5.3G(3) states that the Authority recognises that a penalty must be

proportionate to the breach. The Authority may decrease the level of the penalty

arrived at after applying Step 2 of the framework if it considers that the penalty is

disproportionately high for the breach concerned. In this case the Authority does

consider that the Step 2 figure is disproportionately high and should be adjusted.

6.14. In order to achieve a penalty that (at Step 2) is proportionate to the breach, the

Step 2 figure is reduced by 25% to £39,122,007.

Step 3 – mitigating and aggravating factors

6.15. Pursuant to DEPP 6.5A.3G, at Step 3 the Authority may increase or decrease the

amount of the financial penalty arrived at after Step 2 to take into account factors

which aggravate or mitigate the breach. However in this instance the Authority

does not consider that there are any mitigating or aggravating factors. The Step 3

figure is therefore £39,122,007.

Step 4 – adjustment for deterrence

6.16. Pursuant to DEPP 6.5A.4G, if the Authority considers the figure arrived at after

Step 3 is insufficient to deter the firm who committed the breach, or others, from

committing further or similar breaches, then the Authority may increase the

penalty.

6.17. The Authority considers that the Step 3 figure of £39,122,007 represents a

sufficient deterrent to Rio Tinto and others, and so has not increased the penalty

at Step 4.

6.18. The Step 4 figure is therefore £39,122,007.

Step 5 – settlement discount

6.19. Lastly, because Rio Tinto has reached a settlement with the Authority in the

Authority’s settlement discount scheme, Rio Tinto qualifies for a 30% discount to

its penalty. Accordingly, Rio Tinto’s financial penalty is £27,385,400.

7.
PROCEDURAL MATTERS

Decision maker

7.1. The decision which gave rise to the obligation to give this Notice was made by the

Settlement Decision Makers.

7.2. This Final Notice is given under, and in accordance with, section 390 of the Act.

The following statutory rights are important.

Manner of and time for Payment

7.3.
The financial penalty must be paid in full by Rio Tinto to the FCA no later than 1

November 2017.

If the financial penalty is not paid

7.4.
If all or any of the financial penalty is outstanding on 1 November 2017, the FCA

may recover the outstanding amount as a debt owed by Rio Tinto and due to the

FCA.

7.5.
Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of

information about the matter to which this notice relates. Under those provisions,

the FCA must publish such information about the matter to which this notice

relates as the FCA considers appropriate. The information may be published in

such manner as the FCA considers appropriate. However, the FCA may not publish

information if such publication would, in the opinion of the FCA, be unfair to the

person with respect to whom the action was taken or prejudicial to the interests of

consumers or detrimental to the stability of the UK financial system.

7.6.
The Authority intends to publish such information about the matter to which this

Final Notice relates as it considers appropriate.

Authority contacts

7.7.
For more information concerning this matter generally, contact Stephen Robinson

(direct line: 020 7066 1338) or Andrew Cawser (direct line: 020 7066 1108) of

the Enforcement and Market Oversight Division of the Authority.

Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX A

RELEVANT STATUTORY AND REGULATORY PROVISIONS

1.
RELEVANT STATUTORY PROVISIONS

1.1.
The Authority’s general duties established in section 1B of the Act include the

strategic objective of ensuring that the relevant markets function well and the

operational objectives of protecting and enhancing the integrity of the UK

financial system and securing an appropriate degree of protection for consumers.

2.
RELEVANT REGULATORY PROVISIONS

2.1.
Unless otherwise stated, the regulatory provisions set out below were in force at

all material times.

Disclosure and Transparency Rules

DTR 4.2 Half-yearly financial reports

Preparation and content of condensed set of financial statements

2.2.
DTR 4.2.4R(1): “If an issuer is required to prepare consolidated accounts, the

condensed set of financial statements must be prepared in accordance with IAS

34. [Note: article 5(3) of the TD]”

DTR 1.3 Information gathering and publication

Misleading information not to be published

2.3.
DTR 1.3.4R: “An issuer must take all reasonable care to ensure that any

information it notifies to a RIS is not misleading, false or deceptive and does not

omit anything likely to affect the import of the information.”

2.4.
IFRS are the standards issued by the International Accounting Standards Board

(or its predecessor) and include standards referred to as either IAS or IFRS.

International Accounting Standard 34

2.5.
“The objective of this Standard is to prescribe the minimum content of an interim

financial report and to prescribe the principles for recognition and measurement in

complete or condensed financial statements for an interim period. Timely and

reliable interim financial reporting improves the ability of investors, creditors, and

others to understand an entity’s capacity to generate earnings and cash flows and

its financial condition and liquidity.”

2.6.
The full version of IAS 34 can be found at http://www.ifrs.org

International Accounting Standard 36

Impairment of Assets

2.7.
“The objective of this Standard is to prescribe the procedures that an entity

applies to ensure that its assets are carried at no more than their recoverable

amount. An asset is carried at more than its recoverable amount if its carrying

amount exceeds the amount to be recovered through use or sale of the asset. If

this is the case, the asset is described as impaired and the Standard requires the

entity to recognise an impairment loss. The Standard also specifies when an

entity should reverse an impairment loss and prescribes disclosures.”

2.8.
The full version of IAS 36 can be found at http://www.ifrs.org