Mine Safety Final

8/3/2019 Mine Safety Final

http://slidepdf.com/reader/full/mine-safety-final 1/24

81762 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations

117 CFR 229.10 et seq.217 CFR 229.601.317 CFR 249.308.417 CFR 249.308a.517 CFR 249.310.617 CFR 249.220f.717 CFR 249.240f.815 U.S.C. 78a et seq.917 CFR 239.13.1015 U.S.C. 77a et seq.11See Release No. 33–9164, 34–63548 (December

15, 2010) [75 FR 80374] (the ‘‘Proposing Release’’).

12Public Law 111–203 (July 21, 2010).13Section 1503(a) of the Act.14Section 1503(b) of the Act.1530 U.S.C. 801 et seq.1630 U.S.C. 813(a). Seasonal or intermittent

operations are inspected less frequently. See MineSafety and Health Administration, Program PolicyManual, Volume I, Section 103, available at http:// www.msha.gov/REGS/COMPLIAN/PPM/ PMMAINTC.HTM.

1730 U.S.C. 813(i).1830 U.S.C. 813(g).1930 U.S.C. 820. See also ‘‘MSHA’s Statutory

Functions’’ available at http://www.msha.gov/ MSHAINFO/MSHAINF1.HTM.

20See http://www.msha.gov/DRS/DRSHOME.HTM.

2130 U.S.C. 815(d).22See ‘‘About FMSHRC’’ on http://www.fmshrc.

gov/fmshrc.html. 2330 U.S.C. 816.24See Section 1503(f) of the Act.25Section 1503(d)(2) of the Act.26The public comments we received on the

Proposing Release are available on our Web site athttp://www.sec.gov/comments/s7–41–10/ s74110.shtml. In addition, to facilitate public inputon the Act, the Commission provided a series of email links, organized by topic, on its Web site athttp://www.sec.gov/spotlight/ regreformcomments.shtml. The letter we receivedprior to publication of the Proposing Release onSection 1503 of the Act is available on our Web siteat http://www.sec.gov/comments/df-title-xv/

SECURITIES AND EXCHANGECOMMISSION

17 CFR Parts 229, 239 and 249

[Release Nos. 33–9286; 34–66019; File No.S7–41–10]

RIN 3235–AK83

Mine Safety DisclosureAGENCY: Securities and ExchangeCommission.ACTION: Final rule.

SUMMARY: We are adopting amendmentsto our rules to implement Section 1503of the Dodd-Frank Wall Street Reformand Consumer Protection Act. Section1503(a) of the Act requires issuers thatare operators, or that have a subsidiarythat is an operator, of a coal or othermine to disclose in their periodicreports filed with the Commissioninformation regarding specified health

and safety violations, orders andcitations, related assessments and legalactions, and mining-related fatalities.Section 1503(b) of the Act mandates thefiling of a Form 8–K disclosing thereceipt of certain orders and noticesfrom the Mine Safety and HealthAdministration.

DATES: Effective Date: January 27, 2012.FOR FURTHER INFORMATION CONTACT:

Jennifer Zepralka, Senior SpecialCounsel, or Jennifer Riegel, SpecialCounsel, Division of CorporationFinance at (202) 551–3300, at theSecurities and Exchange Commission,

100 F Street NE., Washington, DC20549.

SUPPLEMENTARY INFORMATION: We areadding new Item 104 to Regulation S–K,1 amending Item 601 of Regulation S–K,2 and amending Forms 8–K,3 10–Q,4 10–K,5 20–F6 and 40–F7 under theSecurities Exchange Act of 1934(‘‘Exchange Act’’).8 In addition, we areamending General Instruction I.A.3(b) of Form S–39 under the Securities Act of 1933 (‘‘Securities Act’’).10

I. Background and Summary

On December 15, 2010, we proposed

amendments to our rules and formsrelating to mine safety disclosure.11 We

proposed these rules to implementSection 1503 of the Dodd-Frank WallStreet Reform and Consumer ProtectionAct (the ‘‘Act’’).12 Section 1503(a) of theAct requires issuers that are required tofile reports with the Commissionpursuant to Section 13(a) or 15(d) of theExchange Act and that are operators, orthat have a subsidiary that is an

operator, of a coal or other mine todisclose specified information aboutmine health and safety in their periodicreports filed with the Commission.13 Section 1503(b) of the Act requires eachissuer that is an operator, or that has asubsidiary that is an operator, of a coalor other mine to file a current report onForm 8–K with the Commissionreporting receipt of certain shutdownorders and notices of patterns orpotential patterns of violations.14

As discussed in the ProposingRelease, the disclosure requirements setforth in Section 1503 of the Act refer to

and are based on the safety and healthrequirements applicable to mines underthe Federal Mine Safety and Health Actof 1977 (the ‘‘Mine Act’’),15 which isadministered by the U.S. Department of Labor’s Mine Safety and HealthAdministration (‘‘MSHA’’). Under theMine Act, MSHA is required to inspectsurface mines at least twice a year andunderground mines at least four times ayear 16 to determine whether there iscompliance with health and safetystandards or with any citation, order ordecision issued under the Mine Act andwhether an imminent danger exists.

MSHA also conducts spot inspections17

and inspections pursuant to miners’complaints.18 If violations of safety orhealth standards are found, MSHAinspectors will issue citations or ordersto the mine operators. Among otheractivities under the Mine Act, MSHAalso assesses and collects civil monetarypenalties for violations of mine safetyand health standards.19 MSHAmaintains a data retrieval system on itsWeb site that allows users to examine,on a mine-by-mine basis, data oninspections, violations, and accidents,as well as information about dust

samplings, at all mines in the UnitedStates.20

In addition, an independentadjudicative agency, the Federal MineSafety and Health Review Commission(the ‘‘FMSHRC’’), providesadministrative trial and appellatereview of legal disputes arising underthe Mine Act.21 Most cases deal with

civil penalties proposed by MSHA to beassessed against mine operators andaddress whether the alleged safety andhealth violations occurred, as well asthe appropriateness of proposedpenalties. Other types of cases includeminers’ complaints of safety- or health-related discrimination and miners’applications for compensation after amine has been idled by a closureorder.22 The FMSHRC’s administrativelaw judges decide cases at the trial leveland the five-member FMSHRC providesappellate review. Appeals from theFMSHRC’s decisions are to the U.S.

courts of appeals.23

The disclosure requirements set forthin Section 1503 of the Act are currentlyin effect.24 Issuers have been providingdisclosure in their periodic and currentreports filed with the Commission sincethe effective date of Section 1503.However, the Act states that theCommission is ‘‘authorized to issuesuch rules or regulations as arenecessary or appropriate for theprotection of investors and to carry outthe purposes of [Section 1503].’’ 25 Inorder to facilitate consistent compliancewith the Act’s requirements by reportingcompanies, we proposed rule

amendments that would implement theAct’s requirements by codifying theminto our disclosure rules and specifyingtheir scope and application. We alsoproposed to require a limited amount of additional disclosure to provide contextfor certain items required by the Act.

We received over 30 comment lettersin response to the proposedamendments, and one letter, receivedprior to our proposal, relating to Section1503 of the Act.26 These letters came

VerDate Mar<15>2010 19:39 Dec 27, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\28DER5.SGM 28DER5

http://www.msha.gov/REGS/COMPLIAN/PPM/PMMAINTC.HTM



http://www.msha.gov/MSHAINFO/MSHAINF1.HTM


http://www.msha.gov/DRS/DRSHOME.HTM



http://www.fmshrc.gov/fmshrc.html


http://www.sec.gov/comments/s7-41-10/s74110.shtml


http://www.sec.gov/spotlight/regreformcomments.shtml


http://www.sec.gov/comments/df-title-xv/





http://www.sec.gov/comments/df-title-xv/












81763Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations

specialized-disclosures/specialized-disclosures.shtml.

27We received three comment letters notingExecutive Order No. 13563 (Jan. 18, 2011), whichinstructs federal agencies to, among other things,minimize burdens on the private sector andsimplify and harmonize their regulations. Seeletters from Industrial Minerals Association—NorthAmerica (‘‘IMA–NA’’), National Stone, Sand, GravelAssociation (‘‘NSSGA’’) and Wyoming Mining

Association (‘‘WMA’’). As these commentatorsacknowledge, the Executive Order does not applyto the Commission. (We note that, subsequent to thesubmission of these comment letters, the Presidentissued a comparable Executive Order, No. 13579(July 11, 2011), directed to independent regulatoryagencies.) However, these commentators assert thatit would be within the spirit of the Executive Orderif the final rules implemented Section 1503 bysimply reiterating the statutory provision in theregulatory text of 17 CFR Parts 229, 239 and 249.While we are not adopting in its entirety theapproach recommended by these commentators, asdiscussed in more detail in this release, we aremodifying some of the disclosure requirementsfrom the proposals so that the final rules adhereclosely to the statutory text.

28Section 1503(e)(3) of the Act. Section 3(d) of the Mine Act provides that an ‘‘operator’’ meansany owner, lessee, or other person who operates,controls, or supervises a coal or other mine or anyindependent contractor performing services orconstruction at such mine. 30 U.S.C. 802.

29

Section 3(h) of the Mine Act states that ‘‘coalor other mine’’ means an area of land from whichminerals are extracted in nonliquid form or, if inliquid form, are extracted with workersunderground, private ways and roads appurtenantto such area, and lands, excavations, undergroundpassageways, shafts, slopes, tunnels and workings,structures, facilities, equipment, machines, tools, orother property including impoundments, retentiondams, and tailings ponds, on the surface orunderground, used in, or to be used in, or resultingfrom, the work of extracting such minerals fromtheir natural deposits in nonliquid form, or if inliquid form, with workers underground, or used in,or to be used in, the milling of such minerals, orthe work of preparing coal or other minerals, andincludes custom coal preparation facilities. Inmaking a determination of what constitutes mineralmilling for purposes of this Act, the Secretary shall

give due consideration to the convenience of administration resulting from the delegation to oneAssistant Secretary of all authority with respect tothe health and safety of miners employed at onephysical establishment; for purposes of titles II, III ,and IV, ‘‘coal mine’’ means an area of land and allstructures, facilities, machinery tools, equipment,shafts, slopes, tunnels, excavations, and otherproperty, real or personal, placed upon, under, orabove the surface of such land by any person, usedin, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, oranthracite from its natural deposits in the earth byany means or method, and the work of preparingthe coal so extracted, and includes custom coalpreparation facilities.

30Section 1503(e)(2) of the Act.

31Under Item 1–02(x) of Regulation S–X, a‘‘subsidiary’’ of a specified person is ‘‘an affil iatecontrolled by such person directly, or indirectlythrough one or more intermediaries.’’ Thisdefinition is identical to the definition of ‘‘subsidiary’’ in Rule 12b–2 under the Exchange Actand Rule 405 under the Securities Act.

32The Mine Act covers each ‘‘coal or other mine,the products of which enter commerce, or the

operations or products of which affect commerce,and each operator of such mine, and every minerin such mine * * *’’ 30 U.S.C. 803. ‘‘‘Commerce’means trade, traffic, commerce, transportation, orcommunication among the several States, or between a place in a State and any place outsidethereof, or within the District of Columbia or apossession of the United States, or between pointsin the same State but through a point outsidethereof.’’ 30 U.S.C. 802(b). ‘‘‘State’ includes a Stateof the United States, the District of Columbia, theCommonwealth of Puerto Rico, the Virgin Islands,American Samoa, Guam, and the Trust Territory of the Pacific Islands.’’ 30 U.S.C. 802(c).

33See the definition of ‘‘smaller reportingcompany’’ in 17 CFR 240.12b–2 and the definitionof ‘‘foreign private issuer’’ in 17 CFR 240.3b–4.

from investors and issuers, as well asprofessional and trade associations,trade unions, law firms and otherinterested parties. In general, thecommentators supported the proposedamendments, although severalcommentators opposed some of theproposed amendments that wouldrequire additional disclosure to provide

context to the information required bythe Act. Many commentators suggestedmodifications or alternatives to theproposals.27 As discussed in detail

below, we have taken into considerationthe comments received on the proposedamendments, as well as the staff’sexperience with the disclosure already

being provided under Section 1503, andare adopting several amendments to ourrules. In general, we have decided notto adopt the proposals that would haveexpanded the required disclosure

beyond that required by Section 1503since we are persuaded by comments

asserting that the added burden of theseproposed requirements likely wouldhave outweighed the potentialincremental benefits of the additionaldisclosure. The final rules we adopttoday adhere closely to Section 1503 of the Act, and reflect changes made fromthe proposals in response to comments.

We are adopting amendments to Form10–K, Form 10–Q, Form 20–F and Form40–F to require the disclosure required

by Section 1503(a) of the Act. We areadopting new Item 104 of Regulation S–K, which sets forth the disclosurerequirements for Forms 10–Q and 10–K,and amending Item 601 of Regulation S–

K to add a new exhibit to Form 10–Kand Form 10–Q for provision of thisinformation. We are also adoptingamendments to Forms 20–F and 40–F toinclude the same disclosurerequirements as those adopted for

issuers that are not foreign privateissuers. In addition, we are adding anew item to Form 8–K to implement therequirement imposed by Section 1503(b)of the Act, and amending Form S–3 toadd the new Form 8–K item to the listof Form 8–K items the untimely filingof which will not result in loss of FormS–3 eligibility.

II. Discussion Of The Amendments

A. Required Disclosure in PeriodicReports

1. Scope

a. Proposed Amendments

Section 1503(a) of the Act mandatesthat specified disclosure be provided ineach periodic report filed with theCommission by every issuer that isrequired to file reports with theCommission pursuant to Section 13(a)or 15(d) of the Exchange Act and that is‘‘an operator, or that has a subsidiary

that is an operator, of a coal or othermine.’’ The Act specifies that the term‘‘operator’’ has the meaning given suchterm in Section 3 of the Mine Act.28 TheAct also specifies that the term ‘‘coal orother mine’’ means a coal or other mineas defined in Section 3 of the MineAct,29 that is subject to the provisions of the Mine Act.30

We proposed to include references tothese definitions in new items of Regulation S–K, the instructions to anew item of Form 20–F and the notes toa new paragraph of General InstructionB of Form 40–F. The proposed rules didnot provide for any other defined terms,

but the Proposing Release noted ourview that the definition of ‘‘subsidiary’’

in Item 1–02(x) of Regulation S–X 31 would apply to this disclosure in theabsence of another definition.

The Proposing Release also explainedthat, because the Act’s definition of ‘‘coal or other mine’’ is limited to thosemines that are subject to the provisionsof the Mine Act, and the Mine Actapplies only to mines located in theUnited States,32 the proposed minesafety disclosure would be requiredonly for coal or other mines (as definedin the Mine Act) located in the UnitedStates. Under the proposed rules, thisdisclosure would be made for each

distinct mine covered by the Mine Act,and issuers would not be permitted togroup mines by project or geographicregion.

The proposed rules would includesmaller reporting companies and foreignprivate issuers 33 within the scope of therules implementing Section 1503(a) of the Act.

The Proposing Release requestedcomment on whether the specialprovisions of Form 10–K and Form 10–Q permitting the omission of certaininformation by wholly ownedsubsidiaries and asset-backed issuersshould apply to the proposed mine

safety disclosure. b. Comments on the ProposedAmendments

Many commentators supported theproposal to apply the disclosurerequirements of Section 1503 only to





34See letters from AngloGold Ashanti Limited(‘‘AngloGold’’), Barrick Gold Corporation (‘‘BarrickGold’’), Cleary Gottlieb Steen & Hamilton LLP(‘‘Cleary’’), Davis Graham & Stubbs LLP (‘‘DGSLaw’’), National Mining Association (‘‘NMA’’), NewYork State Bar Association (‘‘NYSBA’’) and Rio

Tinto plc (‘‘Rio Tinto’’).35See letter from Rio Tinto.36See letter from AngloGold.37See e.g, letters from California Public

Employees’ Retirement System (‘‘CalPERS’’),EARTHWORKS’ No Dirty Gold Campaign(‘‘EARTHWORKS’’), Social Investment Forum(‘‘SIF’’) and Trillium Asset ManagementCorporation (‘‘Trillium’’).

38See letters from SIF and Trillium.39See letters from American Federal of Labor and

Congress of Industrial Organizations (‘‘AFL-CIO’’),Barrick Gold, EARTHWORKS, John H. Estess(‘‘Estess’’) and United Mine Workers of America(‘‘UMWA’’).

40See letter from Barrick Gold.

41See letters from AFL-CIO, Barrick Gold andUMWA.

42See letters from Freeport-McMoRan Copperand Gold Inc. (‘‘Freeport-McMoRan’’), NMA andRio Tinto.

43See letters from Freeport-McMoRan and NMA.44See letter from NMA.45See letters from Barrick Gold and DGS Law.46See letters from AngloGold, Cleary, Estess,

NMA, Rio Tinto, SIF and Trillium.47See letter from Estess.48See letter from EARTHWORKS.

49See e.g, letters from AFL-CIO, CalPERS,California State Teachers’ Retirement System(‘‘CalSTRS’’), EARTHWORKS, NMA, Rio Tinto, SIF,Trillium and UMWA. One commentator agreed thatsmaller reporting companies should be required toprovide the disclosure, but noted concerns aboutthe costs of compliance for smaller reportingcompanies and suggested the Commission considera simpler disclosure system for such companies.See letter from Estess.

50See letters from CalPERS, CalSTRS, DGS Law,EARTHWORKS, NMA, Rio Tinto, SIF and Trillium.

51See letters from DGS Law, NMA and Rio Tinto.52See letters from SIF and Trillium.53See letters from NMA and NYSBA.54See letters from Estess and EARTHWORKS

(neither wholly owned subsidiaries nor asset- backed issuers should be permitted to omit theinformation); SIF and Trillium (no reason forexemptions for asset-backed issuers); and AFL-CIOand UMWA (information of wholly ownedsubsidiaries should not be excluded).

mines that are subject to the Mine Act,and not to mines located outside theUnited States.34 These commentatorsgenerally agreed with our view thatreferences to the Mine Act in Section1503 indicate that the statutorydisclosures are required only for coal orother mines covered by the Mine Act.One commentator noted its belief that it

would be impractical to apply thedisclosure provisions to mines injurisdictions other than the UnitedStates because there is no common minesafety regulatory approach acrossjurisdictions, and warned that anattempt to do so would yieldinconsistent and confusing standards interms of the application of the standard

both between companies and betweenoperating locations.35 Anothercommentator noted that, to the extentthat mine safety information relating toan issuer’s non-U.S. mines is material,disclosure would be required under the

Commission’s existing disclosurerequirements.36 Other commentators, however,

supported expanding the disclosurerequirement to cover mines in alljurisdictions, noting their belief that thehealth and safety risks related to minesin all jurisdictions are as material toinvestors as health and safety concernsfor U.S. mines,37 and asserting that thedata required to be disclosed under theMine Act and Section 1503(a) is asreadily available for an issuer’s non-U.S.mines as it is for U.S. mines.38

Several commentators supported theproposed rule that would requiredisclosure to be provided for each minefor which the issuer or a subsidiary of the issuer is an operator, on a mine-by-mine basis.39 One commentator statedits view that the statutory languageshould be interpreted to be consistentwith a group of operations considered a‘‘mine’’ for purposes of Mine Actreporting.40 Other commentators

similarly noted that this is howoperators report information to MSHA,so issuers would be able to prepare therequired disclosure on a mine-by-mine

basis without a significantadministrative burden.41

Conversely, three commentatorsrequested that the final rules specifythat issuers may group all integrated

facilities of a mine site when complyingwith the disclosure requirements of theAct, notwithstanding the fact that someof those facilities may have been issuedseparate mine identification numbers byMSHA.42 These commentators claimedthat doing so could help promoteinvestor understanding because thehealth and safety information wouldthen be reported in a manner consistentwith the company’s reporting of operating and financial data in theirperiodic reports.43

We received a comment requestingthat we clarify that only those orders

and citations issued to mines with anMSHA identification number are to beincluded in the disclosure.44 Similarly,a few commentators requestedclarification that the final rules requiredisclosure only of orders and citationsissued directly to mine operator issuersand their subsidiaries, and not tocontractors or other entities operating atthe mining site, who would have theirown MSHA identification numbers.45

Several commentators agreed that it isappropriate for the definition of theterm ‘‘subsidiary’’ for purposes of Section 1503 to be consistent with themeaning of the term as defined underItem 1–02(x) of Regulation S–X, andsupported our proposal not to adopt adifferent definition of ‘‘subsidiary.’’ 46 One of these commentators suggestedthat this definition should be specifiedin the new rules.47 However, onecommentator stated that the definitionof subsidiary and entity under thecontrol of the corporation must becomprehensive and should includeunconsolidated equity investees andjoint ventures.48

Commentators generally concurredwith our proposal that smaller reportingcompanies should not be exempted

from the disclosure requirements,generally noting that Section 1503 of the

Act does not contemplate an exceptionfrom disclosure for smaller reportingcompanies.49 Similarly, commentatorsgenerally agreed with the proposal thatforeign private issuers should not beexempted from the disclosurerequirement.50 Many commentatorsexpressed the view that Section 1503 of the Act does not contemplate any

exception from disclosure for foreignprivate issuers,51 while others assertedthat foreign private issuers are as likelyto have risks associated with workersafety issues as domestic reportingcompanies and therefore should berequired to report the sameinformation.52

Commentators had differing views onwhether either wholly ownedsubsidiaries or asset-backed issuersshould be permitted to omit theproposed mine safety disclosure inaccordance with the special provisionsin General Instruction I to Form 10–K

and General Instruction H to Form 10–Q. Two commentators argued thatwholly owned subsidiaries should bepermitted to omit the disclosure if theinformation is disclosed by the whollyowned subsidiary’s parent entity.53 Other commentators stated their viewthat the special provisions should notapply.54

c. Final Rule

We are adopting the final rules asproposed, with a clarifying change tothe instructions regarding the definitionof the term ‘‘subsidiary.’’ The final rulesapply only to mines in the United

States. Although we have consideredthe views of commentators that requestapplication of the disclosurerequirement to non-U.S. mines, wecontinue to believe that the statutorylanguage referencing the Mine Actclearly indicates that the Section 1503disclosures are required only for coal orother mines covered by the Mine Act.We also agree with commentators who





55See MSHA Program Policy Manual Volume III.41–1. For example, for coal mines, preparationplants that receive coal from only one undergroundor surface mine, and are located on the sameproperty as that mine, share the mine’sidentification number, but preparation plants thatshare mine property with a surface or undergroundmine, but process coal from other mines, are to begiven separate identification numbers.

expressed concerns that application of the Act’s disclosure requirement to non-U.S. mines would be difficult toimplement and could result in differentdisclosure from jurisdiction tojurisdiction, which would not bedirectly comparable. Although the finalrules are limited to implementing therequirements of the Act and, therefore,

do not extend to foreign mines, wereiterate, as noted in the ProposingRelease, that to the extent mine safetyissues are material, under our currentrules disclosure could be requiredpursuant to the following items of Regulation S–K: Item 303(Management’s Discussion and Analysisof Financial Condition and Results of Operations), Item 503(c) (Risk Factors),Item 101 (Description of Business) orItem 103 (Legal Proceedings).

The final rules require disclosure ona mine-by-mine basis. We continue to

believe that the disclosure of the

information on a mine-by-mine basisaccords with the plain language of theAct. We understand the concern raised

by commentators about groupings of mines that may more logically bereported together but for having separateMSHA mine identification numbers.However, we note that MSHA’s dataretrieval system provides informationon a mine-by-mine basis using theMSHA mine identification numberassigned to each mine or facility. MSHAhas a detailed process for assigningidentification numbers.55 We believe itis more appropriate to require

disclosure for each specific identifiedmine, consistent with MSHA reporting,as well as with Section 1503.

We note that orders and citationsissued to independent contractors (whoare not subsidiaries of the issuer) whoare working at the issuer’s mine sitewould not need to be reported by theissuer. This is consistent with theapproach discussed above, under whichthe reporting will be for each mine thathas an MSHA identification number,and is consistent with the Act’s use of terms defined in the Mine Act. Thedefinition of ‘‘operator’’ in the Mine Actincludes independent contractors.

Therefore, we note that independentcontractors that are required to filereports with the Commission pursuantto Section 13(a) or 15(d) of the ExchangeAct and are operators, or have a

subsidiary that is an operator, of a coalor other mine would need to include thedisclosure required by Section 1503 andour new rules in their reports. Werecognize that the result of thisapproach could be some orders orcitations will go unreported if theindependent contractor is not areporting company, but believe this

approach is consistent with the wayMSHA reports orders and citations, aswell as with Section 1503. We note thatif individual orders or citations, or apattern of violations, at mines owned byan issuer but operated by anindependent contractor are material tothe issuer, disclosure could be requiredunder our existing rules pursuant to theapplicable items of Regulation S–K.

The final rules will include aninstruction noting that ‘‘subsidiary’’ isas defined in Exchange Act Rule 12b–2. This definition is identical to thedefinition of ‘‘subsidiary’’ found in

Securities Act Rule 405 and RegulationS–X Item 1–02(x), which apply to otherelements of issuers’ periodic disclosure.As stated in Rule 12b–2, a subsidiary of a specified person is ‘‘an affiliatecontrolled by such person directly, orindirectly through one or moreintermediaries.’’ Issuers are accustomedto applying this definition in connectionwith their periodic reporting and we donot see a benefit to adding to issuers’compliance burden by specifying adifferent definition of ‘‘subsidiary’’ inthe context of mine safety disclosure.We considered the suggestion raised bya commentator that ‘‘subsidiary’’ should

be defined to specifically encompassunconsolidated equity investees andjoint ventures. However, we believe thatsuch an approach is inconsistent withthe plain meaning of the term‘‘subsidiary.’’

The final rules do not provide specialtreatment to smaller reportingcompanies or foreign private issuers. Wecontinue to believe their inclusion isconsistent with the plain language of Section 1503(a), which applies broadlyto issuers that are required to file reportsunder Section 13(a) or 15(d) of theExchange Act. In addition, we note that

these issuers have been complying withthe Section 1503 disclosurerequirements since the effective date of that provision.

The final rules do not extend thespecial provisions of Form 10–K andForm 10–Q that permit the omission of certain information by wholly-ownedsubsidiaries and asset-backed issuers.Many commentators stated, and weagree, that such treatment is notnecessary for the mine safety disclosurerequirement. Section 1503 of the Actapplies broadly to ‘‘each issuer that is

required to file reports pursuant to’’ theExchange Act, and does not appear tocontemplate special treatment forparticular types of issuers. We aremaking technical amendments toGeneral Instructions I and J to Form 10–K and General Instruction H to Form10–Q to delete the references to ‘‘Item4, Submission of Matters to a Vote of Security Holders.’’

2. Location of Disclosure

The Act states that companies mustinclude the disclosure in their periodicreports required pursuant to Section13(a) or 15(d) of the Exchange Act.


In order to implement the disclosurerequirement set forth in Section 1503(a)of the Act, we proposed to add new Item4 to Part II of Form 10–Q and new Item4(b) to Part I of Form 10–K, which

would require the information required by new Items 106 and 601(b)(95) of Regulation S–K; new Item 16J to Form20–F; and new Paragraph (18) of General Instruction B of Form 40–F. Asproposed, these items would beidentical in substance and entitled,‘‘Mine Safety Disclosure.’’ The proposeditems would require issuers to providein their periodic reports and in exhibitsto their periodic reports the informationlisted in Section 1503(a) of the Act andcertain additional disclosure designedto provide context for such information.

The proposed rules would requireissuers that have matters to report inaccordance with Section 1503(a) toinclude brief disclosure in the body of the periodic report noting that they havemine safety violations or otherregulatory matters to report inaccordance with Section 1503(a), andthat the required information isincluded in an exhibit to the filing. Theexhibit would include the detaileddisclosure about specific violations andregulatory matters required by Section1503(a) as implemented in the proposedrules. The Proposing Release noted our

view that this approach would facilitateaccess to the information about detailedmine safety matters withoutoverburdening the traditional ExchangeAct reports with extensive newdisclosures.

We did not propose any particularpresentation requirements for the newdisclosure, although the ProposingRelease encouraged issuers to usetabular presentations wheneverpossible, if to do so would facilitateinvestor understanding.





56See letters from AFL-CIO, AngloGold, Chevron

Corporation (‘‘Chevron’’), Cleary, Freeport-McMoRan, Estess, NMA, NYSBA, Rio Tinto andUMWA.

57See letters from AFL-CIO and UMWA.58See, e.g., letters from Chevron and NSSGA. One

commentator suggested that the Form 10–Q reporting requirement could be met by allowingissuers to incorporate by reference the requiredinformation from MSHA’s data retrieval system andprovide specific instructions as to how to access theinformation. See letter from Freeport-McMoRan.

59See, e.g., letters from Chevron, Estess andNMA.

60See letters from AngloGold, Cleary, DGS Law,NMA, NYSBA and Rio Tinto.

61See letters from EARTHWORKS and Estess.

62See letters from EARTHWORKS, SIF andTrillium (filed); and Cleary, NYSBA (furnished).

63See, e.g., letter from NYSBA.64See letters from SIF and Trillium.65See letters from AngloGold, Cleary, IMA–NA,

NMA and WMA.66See letters from Estess, NSSGA, Rio Tinto, SIF

and Trillium.67See letter from Rio Tinto.68See letter from Chevron.69See letters from AngloGold, Chevron, Cleary,

DGS Law, Estess, NMA, NSSGA and Rio Tinto.70See letter from Estess.

71See letter from AngloGold.72See letters from AFL-CIO, SIF, Trillium and

UMWA.73See Section II.A.3 below for a discussion of

time periods covered.74We note that under Section 1503(b), receipt of

a notice from MSHA that a mine has a pattern of violations is a triggering event that would requiredisclosure on Form 8–K within four business daysof receipt of the notice, as reflected in the new Form8–K item we are adopting today.

b. Comments on the ProposedAmendments

A broad spectrum of commentatorssupported the Commission’s proposal torequire the information to be presentedin an exhibit to the periodic report, with

brief disclosure in the body of the reportnoting that the issuer has mine safetymatters to report and referring to therequired exhibit.56 We did not receiveany comments opposing this approach,although two commentators requestedthat certain information, such as all fatalaccidents or receipt of notice that amine has a pattern of violations, berequired to be included in the body of the periodic report so that investorswould be made aware of significantevents without looking to the exhibit.57

The Proposing Release requestedcomment on whether it would bepreferable, and consistent with Section1503, to provide for annual reportingonly, instead of requiring the disclosure

in every periodic report. Although a fewcommentators stated a belief that annualreporting would be preferable toquarterly reporting,58 generally thecommentators agreed that Section1503(a) requires the mine safetydisclosures to be included in eachperiodic report filed with theCommission.59

We requested comment on whetherthe information required by Section1503 should be included in registrationstatements, in addition to the periodicreporting requirement. Manycommentators stated that the disclosure

should not be included in registrationstatements, noting that Section 1503specifies only that the disclosure isrequired in periodic reports.60 However,two commentators stated their view thatthe disclosure should be required inregistration statements.61 On a relatednote, although we did not specificallyrequest comment on the topic, wereceived a small number of commentsexpressing a view on whether thedisclosure required under Section1503(a) and the new rules should befiled with the Commission or instead

deemed to be furnished, not filed.62 Commentators who argued for theinformation to be ‘‘furnished’’ assertedthat, because in their view the Section1503 disclosure requirements are notaimed at providing investors withinformation material to investmentdecisions, Exchange Act Section 18should not apply, the Section 1503

information should not be incorporatedinto any Securities Act filing, and theofficer certifications required byExchange Act Rules 13a–14 and 15d–14should not extend to the Section 1503disclosures.63 However, othercommentators expressed their view thatinformation about health and safetyrisks related to mines operated byissuers is material to investors.64

Some commentators approved of theflexibility of the proposed rules, whichdid not specify any particularpresentation requirements for the newdisclosure and permitted each issuer the

flexibility to adopt a presentation it believes is appropriate for itsdisclosure.65 An equal number of commentators, however, expressed apreference for requiring a specifictabular presentation.66 Onecommentator stated that a specifictabular presentation would more readilyallow an investor to compare resultsfrom different owners or operators andindividual mines.67 Anothercommentator requested that we providean example of an acceptablepresentation or format, stating that aspecific tabular presentation format

would be helpful to ensure the requiredinformation is presented in the correctform.68

Commentators generally were of theview that the Commission should notrequire the information to be providedin an interactive data format.69 Amongthe reasons cited for this view was thatrequiring interactive data could makethe reporting more complex and addcosts to the system.70 Anothercommentator noted its view that thepurpose of the Commission’s existingXBRL rules is to facilitate financialanalysis by investors, and thereforeasserted that requiring the Section 1503

information, which is non-financial in

nature, to be submitted in interactivedata format would not be consistentwith this purpose.71 A fewcommentators, however, expressed apreference that the disclosure be taggedin XBRL.72

c. Final Rule

After considering comments received,

we are adopting the final rulessubstantially as proposed, with minortechnical changes. We are amendingForm 10–Q to add new Item 4 to PartII and Form 10–K to add new Item 4 toPart I, which would require theinformation required by new Items 104and 601(b)(95) of Regulation S–K; Form20–F to add new Item 16H; and Form40–F to add new Paragraph (16) of General Instruction B. As discussed inmore detail below, the disclosure isrequired to be provided in each periodicreport.73

As proposed, the amendments willrequire issuers that have matters toreport in accordance with Section1503(a) to include brief disclosure inPart II of Form 10–Q, Part I of Form 10–K and Forms 20–F and 40–F noting thatthey have mine safety violations orother regulatory matters to report inaccordance with Section 1503(a), andthat the required information isincluded in an exhibit to the filing. Theexhibit would include the detaileddisclosure about specific violations andregulatory matters required by Section1503(a) as implemented in our newrules. Many issuers have alreadyimplemented this approach in their

periodic reports that contain thedisclosure required under Section1503(a). Consistent with the proposal,the final rule does not require disclosurein the body of the periodic report of certain information, such as all fatalaccidents or receipt of notice that amine has a pattern of violations.74 Wedo not believe it is necessary to requirethis additional disclosure in order toimplement Section 1503; and wereiterate, as noted in the ProposingRelease, that in the event that minesafety matters raise concerns that should

be addressed in other parts of a periodic

report, such as risk factors, the businessdescription, legal proceedings ormanagement’s discussion and analysis,inclusion of this new disclosure would





75See new Item 104(a)(3) of Regulation S–K; Item16H(c) of Form 20–F; Paragraph 16(c) of GeneralInstruction B of Form 40–F; and the discussion inSection II.A.4.d(3) below.

76As noted in Sections II.A.4.b(1) and II.A.4.d(1) below, we also proposed to require disclosure of thetotal amounts of assessments of penaltiesoutstanding as of the last day of the quarter and of any developments material to previously reportedlegal actions that occur during the quarter.

77See letters from AFL-CIO, EARTHWORKS,Estess, SIF, Trillium and UMWA.

78See letters from AFL-CIO and UMWA.79See letters from Chevron, Cleary, DGS Law,

Freeport-McMoRan, and NMA. NYSBA and RioTinto.

80See, e.g., letter from Freeport-McMoRan.81See letters from Chevron, Freeport-McMoRan

and Rio Tinto.82See letters from Cleary, DGS Law, NMA and

NYSBA.

not obviate the need to discuss minesafety matters in accordance with otherrules as appropriate.

The amended rules, as proposed, donot specify any particular presentationrequirements for the new disclosure, butwe continue to encourage issuers to usetabular presentations whenever possibleif to do so would facilitate investor

understanding. Many issuers arecurrently providing the disclosurerequired by Section 1503(a) in tabularformat in their periodic reports. Weagree with commentators who suggestedthat the Commission’s provision of anexample of a possible tabularpresentation may encourage uniformityand comparability of disclosures. After

considering the comments received andexamining current disclosure practices,we are including the below example of a potential tabular presentation.However, we note that issuers are freeto present the required information inany presentation they believe isappropriate for the disclosure.

The use of footnotes, accompanying

narrative disclosure or additional tablesmay also help to clarify informationprovided, as appropriate. For example,issuers choosing to use a tabularpresentation similar to the one abovemay provide the additional detaildescribed below that our final rulesrequire about types of legal actions 75 infootnotes, accompanying narrativedisclosure or an additional table.

We are not adopting a requirement toprovide this information in interactivedata format. Section 1503 does notrequire the disclosure to be submitted ininteractive format. After considering the

comments received, we believe that theadded costs of imposing such arequirement would likely not bejustified by the potential benefits toinvestors of having access to theinformation in interactive format.

The final rules require the disclosurein each periodic report filed with theCommission, and such disclosure will

be considered ‘‘filed,’’ not ‘‘furnished.’’We believe that this approach isconsistent with the statutory language of Section 1503—which provides that anissuer must ‘‘include, [the requireddisclosure] in each periodic report filedwith the Commission.’’ Therefore, as is

the case with other disclosure filed aspart of a periodic report, Section 18 of the Exchange Act will apply and thedisclosure is encompassed by theExchange Act Rule 13a–14 and 15d–14certifications. In addition, if the issuerfiles a Securities Act registrationstatement (such as Form S–3) thatincorporates by reference its periodic

reports, the disclosure included in

Exchange Act reports in accordancewith the new rules will be incorporated

by reference.

3. Time Periods Covered

Section 1503(a) of the Act states thateach periodic report must includedisclosure ‘‘for the time period covered

by such report.’’


We proposed that each Form 10–Q would be required to include therequired disclosure for any orders orcitations received, penalties assessed,legal actions initiated or mining-related

fatalities that occurred during thequarter covered by the report.76 We alsoproposed that each Form 10–K would berequired to include disclosure covering

both the fourth quarter of the issuer’sfiscal year and cumulative informationfor the entire fiscal year. For each of Forms 20–F and 40–F, the disclosurewould be required for the issuer’s fiscalyear.

In addition, the Proposing Releasenoted that, based on the language of Section 1503(a) of the Act, the proposedrule would not allow issuers to excludeinformation about orders or citations

that were received during the timeperiod covered by the report butsubsequently were dismissed orreduced. The proposed rules did notprohibit the inclusion of additionalinformation, such as an explanation thatcertain orders or citations weredismissed or reduced.

b. Comments on the Proposed

AmendmentsThere was support from

commentators for the proposal torequire an annual report on Form 10–Kto include disclosures for orders,citations, assessments, legal actions andfatalities for the fourth quarter and alsoon an aggregate basis for the wholeyear.77 Some of these commentatorsstated that it is important for investorsto learn of trends in order to understandmaterial changes in a mine’s health andsafety record, and that requiring theinformation for both the fourth quarterand the whole year would help reveal

such trends.78

However, othercommentators expressed concerns aboutthis aspect of the proposed rule.79 Thesecommentators argued that requiringissuers to include both fourth quarterand annual information would beunnecessary because to do so would notprovide investors with additionalsignificant information.80 Some of thesecommentators asserted that thedisclosure in the Form 10–K shouldcover only the fiscal year.81 Otherspreferred that the disclosure cover onlythe fourth quarter, which would providethe information disclosed on Form 10–K in a comparable period to thequarterly report on Form 10–Q.82

With respect to the disclosure of orders or citations that are dismissed or





83See letters from AFL-CIO, AngloGold, CalPERS,CalSTRS, Chevron, EARTHWORKS, J. Estess, SIF,Trillium and UMWA.

84See letter from Chevron.85See letters from Barrick Gold, DGS Law,

Freeport-McMoRan, NMA, NSSGA and Rio Tinto.86See letter from Freeport-McMoRan.87See letter from DGS Law.88See letters from AngloGold, Barrick Gold,

CalPERS, CalSTRS, Chris Barnard (‘‘Barnard’’),Estess, NYSBA, Portland Cement Association(‘‘PCA’’), SIF, Trillium and UMWA.

89See Articles 3 and 8 of Regulation S–X (17 CFR210.3 and 210.8).

90The final rule also does not allow issuers toexclude information about orders or citations thatit is contesting. See the detailed discussion of thistopic under Section II.A.4.b below.

91See 30 U.S.C. 815(d).

92 In this release, we reference proposed Item 106of Regulation S–K when discussing the proposeddisclosure requirements, but note that the sameanalyses apply to the corresponding provisions inproposed Item 16J of Form 20–F and proposedParagraph (18) of General Instruction B of Form40–F, which are identical in all respects. The sameapproach applies to the references in this release tothe final rules we are adopting as Item 104 of Regulation S–K, Item 16H of Form 20–F andParagraph (16) of General Instruction B of Form40–F.

reduced in severity below the level thattriggers disclosure under Section1503(a), the comments were mixed.Many of the commentators supportedthe Commission’s proposal that issuersshould not be allowed to exclude suchorders or citations from the disclosure.83 One commentator stated that it would

be simpler for the issuer to report all

orders and citations received, ratherthan taking on the burden of reviewingthe information at a later date to removethose that were reduced or dismissed.This commentator also noted thatMSHA’s summary data does not accountfor dismissals, and raised a concern thatallowing issuers to omit dismissedorders and citations could result inconfusion for those who refer toMSHA’s site to compare theinformation.84

On the other hand, othercommentators requested that the finalrules allow issuers to exclude from

disclosure orders or citations that have been subsequently dismissed or reduced below a reportable level prior to filingthe periodic report.85 One commentatorasserted that such an approach would

be consistent with the purposes of Section 1503, which the commentatorcharacterized as providing accuratedisclosure of violations that continue to

be asserted or have been adjudicated,rather than requiring disclosure of matters that the FMSHRC has dismissedor reduced below a reportable level.86 Another commentator noted thatvacated citations are removed entirelyfrom MSHA’s data retrieval system.87

Although comments were mixed onthe disclosure of dismissed or reducedorders or citations, most of thecommentators supported theCommission’s approach of permittingissuers to include additionalinformation and disclosures, such asdisclosure of orders or citations that theissuer is contesting or annotateddisclosure providing information aboutthe status of such orders or citations.88

c. Final Rule

We are adopting the final rule withsome modifications from the proposal.Consistent with the proposal, the finalrule requires each Form 10–Q to includethe required disclosure for the quarter

covered by the report. For each of Forms20–F and 40–F, the disclosure isrequired for the issuer’s fiscal year.Similarly, in a change from theproposal, the final rule requires eachForm 10–K to include disclosure of theinformation for the fiscal year only, notalso for the fourth quarter.

We are persuaded by commentators

that requiring information about boththe fourth quarter and the entire year inthe Form 10–K would addincrementally to the burden of the rule,is not required by the Act, and may notadd significant useful information to thereport. We believe the approach we areadopting is consistent with the Act,which requires disclosure in eachperiodic report ‘‘for the time periodcovered by the report,’’ because theForm 10–K covers the fiscal year. Whilerequiring both full year and fourthquarter data might provide someincremental additional useful

information, we do not believe it isnecessary to implement Section 1503 orthat the benefits of the additionaldisclosure would clearly justify the

burden of preparing it. Among issuersthat have provided disclosure under theAct in their most recent annual reporton Form 10–K, practices were mixed,with some providing the information for

both the fourth quarter and the completefiscal year, some providing theinformation for the complete fiscal year,and a minority providing theinformation for only the fourth quarter.Although we acknowledge that certainlimited information is currently

reported for the fourth quarter only inForm 10–K, we believe that therequirement to provide full-yearinformation in the Form 10–K is moreappropriate because it is consistent withthe general Form 10–K requirement toreport results as of the issuer’s fiscalyear-end.89 We note that although thefinal rule requires disclosure coveringthe fiscal year, issuers are permitted, butnot required, to also separately presentthe information for the fourth quarter.

The final rule does not allow issuersto exclude information about orders orcitations that were received during the

time period covered by the report butsubsequently dismissed, reduced orvacated.90 Although we understandthat, because mine operators have theright to contest orders or citations theyreceive through the administrativeprocess,91 there is a possibility an

operator’s challenge would result indismissal of the order or citation or ina reduction in the severity of the orderor citation below the level that triggersdisclosure under Section 1503(a), we

believe the language of Section 1503(a)of the Act dictates that all orders orcitations received from MSHA bedisclosed. However, as supported by

most commentators, the rule does notprohibit the inclusion of additionaldisclosure with regard to the status of orders or citations received. As noted inthe Proposing Release, we would expectthat issuers will include disclosure thatcomplies with our existing disclosurerequirements when providing any suchinformation.

4. Required Disclosure Items

Section 1503(a) of the Act includes alist of items required to be disclosed inperiodic reports. We proposed thatthose items be reiterated in proposed

Item 106 of Regulation S–K.92

Asdiscussed in more detail below, we alsoproposed instructions to certain of thedisclosure items specified in Section1503(a) to clarify the scope of thedisclosure we would expect issuers toprovide in order to comply with thestatute’s requirements and proposed oneadditional disclosure item not required

by the Act. We discuss each proposeddisclosure item below. Those disclosureitems on which we received little or nocomment are discussed at the end of this section.

a. The total number of violations of mandatory health or safety standards

that could significantly and substantially contribute to the causeand effect of a coal or other mine safety or health hazard under Section 104 of the Mine Act for which the operator received a citation from MSHA.

(1) Proposed Amendments

Section 1503(a)(1)(A) of the Actreferences violations that could‘‘significantly and substantiallycontribute to the cause and effect of acoal or other mine safety or healthhazard under section 104’’ of the MineAct. Section 104 of the Mine Act

requires MSHA inspectors to issuevarious citations and orders forviolations of health and safety





9330 U.S.C. 814.94Secretary of Labor v. Mathies Coal Company, 6

FMSHRC 1 (January 1984). See also MSHA ProgramPolicy Manual February 2003 (Release I–13) Vol. 1,p.21, located at http://www.msha.gov/regs/ complian/ppm/PDFVersion/PPM%20Vol%20I.pdf (‘‘MSHA Program Policy Manual Vol. 1’’) whichprovides guidelines for interpreting Section104(d)(1) and (e)(1) of the Mine Act [30 U.S.C.814(d)(1) and (e)(1)]. In determining whetherconditions created by a violation could significantlyand substantially contribute to the cause and effectof a mine safety or health hazard, inspectors mustdetermine whether there is an underlying violationof a mandatory health or safety standard, whether

there is a discrete safety or health hazardcontributed to by the violation, whether there is areasonable likelihood that the hazard contributed towill result in an injury or i llness, and whether thereis a reasonable likelihood that the injury or illnessin question will be of a reasonably serious nature.Id.

95MSHA Program Policy Manual Vol. 1, p. 23.96The MSHA data retrieval system can be

accessed at http://www.msha.gov/drs/ drshome.HTM. Vacated citations and orders areremoved from the data retrieval system.

97See letters from AFL-CIO, AngloGold, Chevron,Cleary, NMA, NYSBA, PCA, Rio Tinto and UMWA.

98See letters from NMA and Rio Tinto.99See letters from Estess, SIF and Trillium.

10030 U.S.C. 815(b)(1)(B).101See 30 CFR 100.7. If the proposed penalty is

not paid or contested within 30 days of receipt, theproposed penalty becomes a final order of theFMSHRC and is not subject to review by any courtor agency.

102See letters from AFL-CIO, EARTHWORKS,SIF, Trillium and UMWA.

103See letters from Chevron, Cleary, DGS Law,Freeport-McMoRan, NMA and NYSBA.

104See, e.g., letters from Cleary, Freeport-McMoRan, NMA and Rio Tinto.

105See letters from Chevron and DGS Law.106See letters from Chevron and Cleary.107See letters from AFL-CIO, AngloGold,

CalPERS, CalSTRS, Chevron, EARTHWORKS,Estess, SIF, Trillium and UMWA.

108See letters from AFL-CIO and UMWA.

standards.93 A violation of a mandatorysafety standard that is reasonably likelyto result in a reasonably serious injuryor illness under the uniquecircumstance contributed to by theviolation is referred to by MSHA as a‘‘significant and substantial’’ violation(commonly called an ‘‘S&S’’violation).94 In writing each citation or

order, the MSHA inspector determineswhether the violation is ‘‘S&S’’ or not.95 The MSHA data retrieval systemcurrently provides information about allcitations and orders issued, and noteswhich of those citations or orders are‘‘S&S.’’96

The proposed rules would requiredisclosure under this item of allcitations received under Section 104 of the Mine Act that note an S&S violation.We requested comment on whether thefinal rules should instead requiredisclosure of all citations receivedunder Section 104.

(2) Comments on the ProposedAmendments

Most commentators supported theproposal to limit the required disclosureto S&S violations.97 Commentatorsstated that such an approach isconsistent with the explicit language of the Act, and asserted that expanding therequirement to all violations underSection 104 of the Mine Act would not

be useful to investors and could detractfrom the information required by theAct.98 However, a few commentatorsexpressed the view that all Section 104

violations should be disclosed in orderto provide full disclosure to investors.99

(3) Final Rule

We are adopting the provision asproposed. We continue to believe thatthe language of Section 1503(a)(1)(A)referencing violations that could‘‘significantly and substantiallycontribute to the cause and effect of acoal or other mine safety or health

hazard under section 104’’ was intendedto elicit disclosure only of citationsreceived under Section 104 of the MineAct that note an S&S violation. We agreewith commentators that expanding thedisclosure requirement to include non-S&S violations under Section 104 of theMine Act would expand the scope of thedisclosure beyond that called for bySection 1503 of the Act and likelywould not result in additional usefulinformation being provided to investorsthat would justify the increased burdenson issuers.

b. The total dollar value of proposed assessments from MSHA under the Mine

Act.


Section 1503(a)(1)(F) requires issuersto disclose, for each mine, the ‘‘totaldollar value of proposed assessmentsfrom [MSHA] under the [Mine] Act.’’The issuance of a citation or order byMSHA typically results in theassessment of a civil penalty against themine operator. Penalties are assessedaccording to a formula that considersseveral factors, including a history of previous violations, size of operator’s

business, negligence by the operator,

gravity of the violation, operator’s goodfaith in trying to correct the violationpromptly and the effect of the penaltyon the operator’s ability to stay in

business.100 When any civil penalty isproposed to be assessed by MSHA, themine operator has 30 days followingreceipt of the notice of proposed penaltyto pay the penalty or file a contest andrequest a hearing before an FMSHRCadministrative law judge.101

The proposed rules would requirethat issuers disclose the total dollaramount of assessments of penaltiesproposed by MSHA during the timeperiod covered by the report. Under theproposals, the disclosure would alsoinclude the cumulative total of allproposed assessments of penaltiesoutstanding as of the last day of theperiod covered by the report. Asproposed, this disclosure would includeany dollar amounts of penalty

assessments proposed during the timeperiod that the issuer is contesting withthe FMSHRC, although issuers wouldnot be prohibited from includingadditional information noting thatcertain proposed assessments of penalties are being contested.

(2) Comments on the Proposed

Amendments

Some commentators approved of theproposal to require the total dollaramount of proposed penalties assessed

by MSHA during the time periodcovered by the report as well as thecumulative total of all proposedassessments of penalties outstanding asof the date of the report.102 However,several other commentators expressedconcerns about the proposal, inparticular about the proposedrequirement to disclose cumulativeamounts of penalties outstanding as of

the date of the report.103

Commentatorsnoted that such disclosure is notrequired by Section 1503 and assertedthat such a requirement would go

beyond the scope of the Act.104 Somecommentators expressed concern thatthe requirement could lead to inquiriesto reconcile period-to-periodchanges,105 and asserted that thedisclosure would not necessarily beindicative of an issuer’s safety recordduring the reporting period, but ratherthe issuer’s decisions to pay or contestassessments.106

Several commentators agreed with the

proposal that issuers should be requiredto include in the total dollar amountreported any proposed assessments of penalties that are being contested.107 Some commentators expressed aconcern that allowing issuers to omitcontested matters until they are deemedfinal could provide an incentive foroperators to contest MSHA enforcementactions, which they believe would becontrary to public policy and couldincrease MSHA’s backlog of pendingcases.108 Other commentators expressedconcerns about this proposedrequirement, and requested that the

final rules permit issuers to excludeproposed assessments of penalties that


http://www.msha.gov/regs/complian/ppm/PDFVersion/PPM%20Vol%20I.pdf


http://www.msha.gov/drs/drshome.HTM









109See letters from Barrick Gold, NMA and RioTinto.

110See letters from Barrick Gold and NMA.111See letters from AFL-CIO, AngloGold,

Chevron, NMA, Rio Tinto and UMWA.112See letters from AngloGold and NMA.113See letters from AFL-CIO, Chevron, Rio Tinto

and UMWA.114See letters from Oxford Resources Partners LP

and Rio Tinto.

115See Section II.A.4.f of the Proposing Release[75 FR 80374 at 80379] for a discussion of MSHA’sprocess for determining whether a fatality is ‘‘non-

chargeable’’ to the mining industry.116See letters from AngloGold, Barrick Gold,

Cleary, Estess, NMA, NYSBA and Rio Tinto.117See letters from AngloGold, Cleary, NMA,

NYSBA and Rio Tinto.118See letters from AngloGold, Estess, NMA and

Rio Tinto.119See letters from AFL-CIO, EARTHWORKS,

SIF, Trillium and UMWA.120See letters from SIF and Trillium.121See letters from AFL-CIO, Estess, SIF, Trillium

and UMWA.122See letters from AFL-CIO, Barrick Gold,

Cleary, DGS Law, Estess, NYSBA, PCA, Rio Tintoand UMWA.

123See letters from Cleary and Estess.

are being contested.109 Among thereasons asserted in support of such anapproach is the commentators’ view thatrequiring issuers to include proposedassessments of penalties that are beingcontested in the total dollar amountreported could, in essence, amount todenial of due process for the issuer

because reporting such information has

the potential to cause reputational harmfor the issuer before resolution of thematter has been reached.110

Commentators generally agreed that if contested amounts are required to bereported, issuers should be permitted tonote the contested amounts.111 Some of these commentators asserted thatcontested amounts should be permittedto be reported separately.112 Othersagreed with the Commission’s proposalto require disclosure of one total dollaramount that encompasses bothcontested and uncontested amounts, butwere of the view that issuers should be

permitted to provide additionaldisclosure to explain contested amountsif they choose.113

We received two comment letterssuggesting that the disclosure required

by this item should be limited to thosepenalties proposed for the type of violations required to be disclosedunder Section 1503(a), rather than forall penalties proposed during the timeperiod.114 These commentators statedtheir view that requiring disclosure of all penalties—not only those that relateto actions that have to be reported underSection 1503—would go beyond therequirements of the Act and increase the

burdens on issuers in preparing thisdisclosure.

(3) Final Rule

We are adopting a final rule thatprovides that disclosure is required ineach periodic report of the total dollaramount of assessments proposed byMSHA during the period covered by thereport. Therefore, each Form 10–Q isrequired to include the dollar amount of assessments proposed by MSHA duringthe quarter, while the Form 10–K, Form20–F and Form 40–F must include thedollar amount of assessments proposed

by MSHA during the fiscal year.We are not adopting the proposedrequirement to also disclose thecumulative total of all assessments

outstanding as of the last day of thereporting period. After considering thecomments received, we are persuadedthat expanding the disclosurerequirement in this manner beyond thescope of the Act is not necessary andlikely would not result in additionaluseful information being provided toinvestors that would justify the

increased burden on issuers. We notethat the cumulative total of alloutstanding assessments as of the lastday of the reporting period is notmandated by Section 1503 of the Act,which requires, ‘‘for the time periodcovered by the report * * * the totaldollar value of proposed assessmentsfrom the Mine Safety and HealthAdministration under [the Mine Act].’’In addition, we believe the final rule isconsistent with the information manyissuers are currently providing in theirperiodic reports to comply with the Act.

The final rule requires disclosure of

the amount of all assessments of penalties proposed by MSHA during thereporting period relating to any type of violation, and regardless of whethersuch proposed assessments are beingcontested or were dismissed or reducedprior to the date of filing of the periodicreport. We acknowledge commentators’concerns about the potential forreputational harm from disclosingproposed assessments before they arefinal, but we believe that the languageof Section 1503 requires disclosure of all such proposed assessments. Inaddition, we note that information about

proposed assessments that are beingcontested is already available onMSHA’s Web site. We note that issuersmay include additional disclosureexplaining the status of these orders,citations and assessments. The final ruleadds an instruction clarifying thatcontested amounts may neither beomitted from the disclosure norreported separately, but that issuers arepermitted to note the contested amountsand provide additional disclosure.

c. The total number of mining-related fatalities.


Section 1503(a)(1)(G) of the Actrequires issuers to disclose, for eachmine, ‘‘the total number of mining-related fatalities.’’ Under the proposedrules, the requirement to disclosemining-related fatalities would apply tofatalities at mines that are subject to theMine Act and not to mining-relatedfatalities in other jurisdictions. Asproposed, issuers would report all suchfatalities that are required to bedisclosed under MSHA regulations,unless the fatality is determined to be

‘‘non-chargeable’’ to the miningindustry.115

Comments on the ProposedAmendments

Several commentators supported theproposal to require disclosure of mining-related fatalities only at minesthat are subject to the Mine Act.116

Many of these commentators noted thatthis interpretation is consistent with thescope of Section 1503(a), which by itsterms applies to mines that are subjectto the Mine Act.117 Commentators alsoraised concerns that if the disclosurerequirement were to be expanded tocover mining-related fatalities outside of the United States, it would be difficultto apply a standard for what constitutesa ‘‘mining-related’’ fatality in non-U.S.jurisdictions.118

Other commentators stated thatreporting on mining-related fatalitiesshould apply to all mines operated byan issuer (or a subsidiary of the issuer)that files periodic reports with theCommission, regardless of the locationof the issuer’s mines worldwide.119 Twoof these commentators asserted thatsuch information is material to investorsand to the issuer.120 The majority of thecommentators who recommendedapplying the disclosure requirement toall mining-related fatalities regardless of the location of the mine alsorecommended that the MSHAframework should be applied to non-U.S. mining-related fatalities forreporting purposes.121

Several commentators concurred with

the Commission’s proposal to requiredisclosure of all fatalities required to bereported pursuant to MSHA regulations,unless the fatality has been determinedto be ‘‘non-chargeable’’ to the miningindustry.122 Two commentators statedthat an instruction should be added tothe rule specifying this interpretation of the disclosure requirement.123 Twocommentators also recommended thatwe add an instruction to the ruleclarifying that fatalities are not required





124See letters from Cleary and DGS Law.125See letters from AngloGold, Chevron, MNA,

NSSGA and Rio Tinto.126See letters from EARTHWORKS, SIF and

Trillium.127See letters from SIF and Trillium.128See 30 CFR 50.10 and 50.20.129See MSHA Accident/Illness Investigation

Procedures Handbook, Chapter 2 Release 1 (June2011) p. 21 located at http://www.msha.gov/ READROOM/HANDBOOK/PH11–I–1.pdf (‘‘MSHAAccident/Illness Handbook’’).

130We note that MSHA makes publicly availableits reports of non-chargeable mining deaths, whichinclude the date of the incident, the mine name andthe name of the operating company on its Web site.See http://www.msha.gov/Fatals/NonChargeables/ NonChargeableFatalshome.asp.

131See, e.g., letters from AFL-CIO, CalPERS,CalSTRS, EARTHWORKS, Estess, SIF, Trillium and

UMWA.132See letters from AFL-CIO, Estess, and UMWA.133See letters from Chevron, Cleary, DGS Law,

Freeport-McMoRan, NMA, NSSGA and NYSBA.134See letters from Cleary, DGS Law, NMA and

NYSBA.135See letters from Cleary and NMA.136See letters from Chevron and NSSGA.137See letter from Freeport-McMoRan.138See, e.g., letters from Chevron (noting its

preference that disclosure be limited to pendinglegal actions initiated during the reporting period, but suggesting that if updates are required, theyshould be limited to aggregate information on finalresolutions reached during the reporting period),Cleary, DGS Law and NMA.

to be disclosed while under review byMSHA’s Fatality Review Committee if the issuer has a good faith belief that thefatality is non-chargeable, and that if thefatality is ultimately determined to bechargeable, the issuer would include itin its next periodic report.124 Similarly,other commentators asserted that itwould be appropriate to require

disclosure only of fatalities that, as of the last day of the reporting period, have

been determined to be ‘‘chargeable’’ byMSHA’s Fatality Review Committee.125

Other commentators stated that allfatalities should be required to bedisclosed, whether chargeable or non-chargeable,126 but noted that issuersshould be permitted to explain non-chargeable incidents in their reports.127

(3) Final Rule

After consideration of the commentsreceived, we are adopting the final ruleas proposed, with an added instructionspecifying that fatalities determined byMSHA not to be mining-related may beexcluded.

The final rule requires disclosure of mining-related fatalities at mines thatare subject to the Mine Act. Althoughwe considered the views of thosecommentators who believe thedisclosure requirement shouldencompass mines in all jurisdictions,we continue to believe that thisdisclosure requirement encompassesmining-related fatalities only at minesthat are subject to the Mine Act. As wenoted in the Proposing Release, Section1503(a)(1)(G) is the only provision of the

Act that does not specifically referencethe Mine Act, a specific notice, order orcitation from MSHA, or the FMSHRC,

but we are of the view that interpretingSection 1503 as limited to mines thatare subject to the provisions of the MineAct is appropriate because it will resultin consistency among reportingobligations.

MSHA regulations require mineoperators to report to MSHA allfatalities that occur at a mine.128 MSHAhas also established policies andprocedures for determining whether afatality is unrelated to mining activity(commonly referred to as ‘‘non-chargeable’’ to the mining industry).129 Since the MSHA regulations provide a

comprehensive scheme of regulation,reporting and assessment for mining-related fatalities, we believe thedisclosure required by this section isintended to include all fatalities that arerequired to be disclosed under MSHAregulations, unless the fatality isdetermined to be ‘‘non-chargeable’’ tothe mining industry. The final rules

specify that disclosure is required of allfatalities, unless the fatality isdetermined to be ‘‘non-chargeable.’’ Weappreciate the objection raised by somecommentators about requiring reportingof fatalities that are under review byMSHA’s Fatality Review Committee if the issuer has a good faith belief that thefatality is non-chargeable, but we

believe it would be more consistentwith Section 1503, our treatment of other disclosure items under Section1503 (such as the reporting of contestedmatters under the final rules discussedabove) and MSHA’s reporting of

fatalities130

to require reporting of allfatalities, other than those that have been determined by MSHA to be non-chargeable. Issuers that wish to provideadditional information about fatalities,such as whether a fatality is underreview by MSHA, are not prohibitedfrom doing so under the final rules.

d. Any pending legal action before theFederal Mine Safety and Health Review Commission involving such coal or other mine.


Section 1503(a)(3) requires disclosure

of ‘‘[a]ny pending legal action before theFederal Mine Safety and Health ReviewCommission involving such coal orother mine.’’ Under the proposed rules,any legal actions before the FMSHRCinvolving a coal or other mine for whichthe issuer or a subsidiary of the issueris the operator would be disclosed inthe periodic report covering the timeperiod during which the legal actionwas initiated. As proposed, the ruleswould require the information aboutpending legal actions to be updated insubsequent periodic reports if there aredevelopments material to the legalaction that occur during the time periodcovered by such report. As proposed,the disclosure required by this itemwould include the date the pendinglegal action was instituted and by whom(e.g., MSHA or the mine operator), thename and location of the mine involved,and a brief description of the category

of order or citation underlying theproceeding.


We received comment letterssupporting the proposal to requiredisclosure about pending legal actionsin the periodic report covering the

period in which the action wasinitiated, with updates in subsequentreports for developments material to thepending action.131 Certaincommentators also stated that it wasappropriate to require contextualinformation for each pending legalaction.132

However, other commentators raisedconcerns about the proposed approachto this disclosure item.133 Commentators found both the proposedupdating requirement and the proposedrequirement to include contextualinformation about each pending legal

action to be problematic, noting that thelanguage of Section 1503 does notrequire such information.134 Withrespect to this disclosure, somecommentators supported a requirementto report the number of pending legalactions,135 while others supported analternative approach that would requireissuers to report the number of pendinglegal actions initiated during the timeperiod covered by the periodicreport.136 One commentator expressedthe view that it would be appropriate toallow issuers to disclose the number of matters pending before the FMSHRC,along with the number instituted andresolved in the reporting period, with ageneral description of the types of matters.137

Some commentators expressedconcerns that a requirement to provideupdating information would result involuminous disclosure, be overly

burdensome for issuers and potentially be complicated for users of theinformation, because legal actionswould likely overlap multiple periodsprior to resolution.138 Many


http://www.msha.gov/READROOM/HANDBOOK/PH11-I-1.pdf


http://www.msha.gov/Fatals/NonChargeables/NonChargeableFatalshome.asp










139See letters from Chevron, Cleary, Freeport-McMoRan, NMA and NSSGA.

140See letters from DGS Law, Freeport-McMoRanand NMA.

141Other types of enforcement-related legalactions under the Mine Act may occur in federaldistrict court or courts of appeal that do not involveFMSHRC at any stage. Although these legal actionsare not within the scope of the disclosurerequirement, we remind issuers of their obligationto report material legal proceedings under otherprovisions of our rules.

142See the Federal Mine Safety and HealthReview Commission’s Procedural Rules, 29 CFRPart 2700 (‘‘FMSHRC Procedural Rules’’).

143See Subpart B of the FMSHRC ProceduralRules.

144See Subpart C of the FMSHRC ProceduralRules.

145See Subpart D of the FMSHRC ProceduralRules.

146See Subpart E of the FMSHRC ProceduralRules. See also ‘‘Guide to CommissionProceedings,’’ available at http://www.fmshrc.gov/ guides/englishguide.htm, Sections II.C and II.D.

147See Subpart F of the FMSHRC ProceduralRules.

148See Subpart H of the FMSHRC ProceduralRules.

commentators also stated that theproposed requirement for disclosure of contextual information for each pendinglegal action would be voluminous andunhelpful, unnecessarily burdening

both the issuer and the user of theinformation.139 Commentators alsonoted that, due to the strict statutorylanguage, no materiality standard can be

applied to limit the number of legalactions that must be reported, andtherefore determining what constitutes a‘‘material’’ development in a case thatmay not be material to investors underour traditional materiality analysis may

be problematic for issuers.140

(3) Final Rule

After considering the commentsreceived on the proposed disclosurerequirement, we are adopting a finalrule that requires issuers to disclose, foreach coal or other mine subject to theMine Act, the identity of the mine and

the number of legal actions involvingsuch mine that were pending before theFMSHRC141 as of the last day of theperiod covered by the periodic report, aswell as the aggregate number of legalactions instituted and the aggregatenumber of legal actions resolved duringthe reporting period. Instead of theproposal to require a brief description of the category of order or citationunderlying each proceeding, the finalrule requires that the total number of legal actions pending before theFMSHRC as of the last day of the timeperiod covered by the report becategorized according to the type of proceeding, in accordance with thecategories established in the ProceduralRules of the FMSHRC.142 Thesecategories are:

• Contests of citations and orders,which typically are filed prior to anoperator’s receipt of a proposed penaltyassessment from MSHA or relate toorders for which penalties are notassessed (such as imminent dangerorders under Section 107 of the MineAct). This category includes:Æ Contests of citations or orders

issued under section 104 of the MineAct,

Æ contests of imminent dangerwithdrawal orders under section 107 of the Mine Act, andÆ emergency response plan dispute

proceedings (as required under the MineImprovement and New EmergencyResponse Act of 2006, Pub. L. 109–236,120 Stat. 493); 143

• contests of proposed penalties,

which are administrative proceedings before the FMSHRC challenging a civilpenalty that MSHA has proposed for theviolation contained in a citation ororder; 144

• complaints for compensation,which are cases under section 111 of theMine Act that may be filed with theFMSHRC by miners idled by a closureorder issued by MSHA who are entitledto compensation; 145

• Complaints of discharge,discrimination or interference undersection 105 of the Mine Act, whichcover:Æ Discrimination proceedings

involving a miner’s allegation that he orshe has suffered adverse employmentaction because he or she engaged inactivity protected under the Mine Act,such as making a safety complaint, andÆ Temporary reinstatement

proceedings involving cases in which aminer has filed a complaint with MSHAstating that he or she has suffered suchdiscrimination and has lost his or herposition; 146

• Applications for temporary relief,which are applications under section105(b)(2) of the Mine Act for temporaryrelief from any modification or

termination of any order or from anyorder issued under section 104 of theMine Act (other than citations issuedunder section 104(a) or (f) of the MineAct): 147 and

• Appeals of judges’ decisions ororders to the FMSHRC, includingpetitions for discretionary review andreview by the FMSHRC on its ownmotion.148

We are not adopting the proposal torequire certain additional informationabout the legal actions, such as the datethe action was instituted and by whom,the location of the mine, or the proposal

that would have required the

information about legal actions to beupdated for material developments insubsequent periodic reports. Werecognize that this is a departure fromthe proposed requirement, but we agreewith commentators who pointed outthat the rule as proposed requiredinformation not necessary to implementSection 1503 and could result in

voluminous disclosure of limitedinformational value. We note thatSection 1503 calls for disclosure of ‘‘[a]ny pending legal action before theFederal Mine Safety and Health ReviewCommission involving such coal orother mine’’ but does not specify whatinformation is required to be disclosedin accordance with this disclosure item.

We believe the final rule satisfies thestatutory language and will provideusers of this information with a clearpicture of the extent and nature of mineoperators’ involvement in legal actions.Further, we believe that the requirement

to provide the number of legal actionsin specified categories will provideconsistency in the disclosure, andprovide users of this information with ageneral sense of the types of legalactions involving mine operators.Because all documents filed with theFMSHRC in these legal actions areserved on all the involved parties, we

believe that this information about legalactions is readily available to issuers.We do not believe that theserequirements impose significantadditional burdens on issuers.

Issuers who wish to provideadditional information about pending

legal actions are not prohibited fromdoing so under the final rules. Inaddition, we note that Item 103 of Regulation S–K (Legal Proceedings)continues to apply, so that to the extenta legal proceeding is required to bedisclosed under that item, disclosureand updates for material developmentswould be required.

e. A brief description of each category of violations, orders and citationsreported.


Although not required by Section

1503 of the Act, the proposed ruleswould require issuers to provide a brief description of each category of violations, orders and citations reportedso that investors can understand the

basis for the violations, orders orcitations referenced.


Some commentators expressed theview that the information otherwiseprovided as required by the Act would

be sufficient without requiring the brief


http://www.fmshrc.gov/guides/englishguide.htm







149See letters from NMA, Chevron, Cleary, IMA–NA and WMA.

150See letters from Cleary, IMA–NA and WMA.151See letter from Cleary.152See letter from Chevron.153See letter from Cleary.154See letters from AFL-CIO, DGS Law,

EARTHWORKS, Estess, NYSBA, SIF, Trillium andUMWA.

155See letters from SIF and Trillium.156See letters from NMA and PCA. See also letter

from Chevron (stating its opposition to inclusion of the requirement, but suggesting this approach as apotential alternative).

157See letter from DGS Law. 15830 U.S.C. 820(b)(2).

description of each category of violations, orders and citationsreported.149 Commentators particularlynoted concerns about the expansion of the disclosure requirement beyond whatis set forth in Section 1503.150 Onecommentator raised a concern that therequirement would result in boilerplatelanguage.151 Others noted that investors

who are interested in finding moredetail and descriptions of theinformation reported can find theinformation on MSHA’s Web site 152 orin the Mine Act.153

Several other commentatorssupported the proposal to require theadditional disclosure.154 Somecommentators expressed the view thatthis information would be useful toinvestors beyond the statistics providedunder Section 1503 because it wouldprovide context that would allowinvestors to weigh the significance of the reported information.155 Three

commentators suggested thatclarification of the requirement wasneeded, such as a generic description orglossary developed by the Commissionthat could be used in each periodicreport.156 One commentator suggestedthat the basic descriptions should beprovided once a year with the Form 10–K, and not be required to be includedin every periodic report.157

(3) Final Rule

The final rules do not require a brief description of each category of violations, orders and citations reported.After considering the comments

received, we believe that the disclosurethat would be elicited by the proposedrequirement would not be usefulenough to investors to justify theexpansion of the disclosure requirement

beyond the scope of Section 1503. Wenote that the information is not required

by Section 1503, and issuers, who have been providing the required disclosuresince the effective date of Section 1503,have generally not been providing thisinformation. However, issuers mayprovide additional information in theirperiodic reports to the extent they

believe it would be useful to investors.

In addition, we note that if particularmine safety issues are material andrequired to be disclosed under our otherrules, then information about the natureof the violation likely would benecessary to satisfy our other disclosurerequirements.

f. Other disclosure items specified inSection 1503(a).

In addition to the disclosure itemsdiscussed above, proposed Item 106 of Regulation S–K reiterated the languageof Section 1503(a) with respect toseveral other items required to bedisclosed under the Act. The ProposingRelease did not request commentspecifically on these items. We did,however, receive two supportingcomments on some of these items, asdiscussed below. We are adopting theseitems as proposed.


i. The total number of orders issued under Section 104(b) of the Mine Act.

Section 1503(a)(1)(B) of the Actrequires disclosure of ‘‘the total numberof orders issued under section 104(b) of [the Mine Act].’’ Under our proposal,each issuer that is required underSection 1503(a) to provide mine safetydisclosure would be required to providethe total number of orders issued underSection 104(b) of the Mine Act for eachcoal or other mine for the time periodcovered by the report. Section 104(b) of the Mine Act covers violations that hadpreviously been cited under Section104(a) that, upon follow-up inspection

by MSHA, are found not to have been

totally abated within the prescribedtime period, which results in theissuance of an order requiring the mineoperator to immediately withdraw allpersons (except certain authorizedpersons) from the mine.

ii. The total number of citations and orders for unwarrantable failure of themine operator to comply withmandatory health and safety standardsunder Section 104(d) of the Mine Act.

Under Section 104(d) of the Mine Act,an inspector issues a citation if theinspector finds a violation of amandatory health or safety standard,

and also finds that, while the conditionsdo not cause imminent danger, theviolation could significantly andsubstantially contribute to the cause andeffect of a safety or health hazard, andthat the violation is caused by anunwarrantable failure of the operator tocomply with the health and safetystandards. If, in the same inspection oran inspection within 90 days, aninspector finds another violation of amandatory health or safety standard andfinds such violation to also be caused byan unwarrantable failure of the operator

to comply with the health and safetystandards, the inspector issues an orderrequiring the mine operator toimmediately withdraw all persons(except certain authorized persons) fromthe mine. The proposed rule wouldimplement the Act’s requirement todisclose these citations and ordersissued during the reporting period.

iii. The total number of flagrant violations under Section 110(b)(2) of theMine Act.

Section 110(b)(2) of the Mine Act is apenalty provision that provides thatviolations that are deemed to be‘‘flagrant’’ may be assessed a maximumcivil penalty. The term ‘‘flagrant’’ withrespect to a violation means ‘‘a recklessor repeated failure to make reasonableefforts to eliminate a known violation of a mandatory health or safety standardthat substantially and proximatelycaused, or reasonably could have beenexpected to cause, death or serious

bodily injury.’’ 158 The proposed rulewould implement the Act’s requirementto disclose the total number of flagrantviolations under Section 110(b)(2) of theMine Act for the reporting period.

iv. The total number of imminent danger orders issued under Section107(a) of the Mine Act.

An imminent danger order is issuedunder Section 107(a) of the Mine Act if the MSHA inspector determines there isan imminent danger in the mine. Theorder requires the operator of the mineto cause all persons (except certainauthorized persons) to be withdrawnfrom the mine until the imminent

danger and the conditions that causedsuch imminent danger cease to exist.This type of order does not preclude theissuance of a citation under Section 104or a penalty under Section 110. Theproposed rule would implement theAct’s requirement to disclose the totalnumber of imminent danger ordersissued under Section 107(a) of the MineAct during the reporting period.

v. A list of mines for which the issuer or a subsidiary received written notice

from MSHA of a pattern of violations of mandatory health or safety standardsthat are of such nature as could have

significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards under Section 104(e) of theMine Act.

If MSHA determines that a mine hasa ‘‘pattern’’ of violations of mandatoryhealth or safety standards that are of such nature as could have significantlyand substantially contributed to thecause and effect of coal or other minehealth or safety hazards, under Section





159See 30 CFR 104.4.160See letters from AFL-CIO and UMWA.

161Section 1503(b) of the Act.162See Section II.A.4.f.(1)iv. above for a

description of an imminent danger order issuedunder Section 107(a) of the Mine Act [30 U.S.C.817(a)].

163See Section II.A.4.f.(1)v. above for adescription of the written notice from MSHAregarding a pattern of violations under Section104(e) of the Mine Act [30 U.S.C. 814(e)].

164See Section II.A.4.f(1)vi. above for adescription of the written notice from MSHA of thepotential to have a pattern of violations underSection 104(e) of the Mine Act [30 U.S.C. 814(e)].

165See letters from AFL-CIO, SIF, Trillium andUMWA.

166See letters from SIF and Trillium.167See letters from Chevron, Estess, NMA and

NSSGA.168See letter from NSSGA.169See letter from Chevron.170See letters from Estess, SIF and Trillium.171See letters from Chevron, Cleary and Estess.172See letters from Estess, SIF and Trillium.173See letters from NMA (suggesting seven

business day deadline), Chevron (suggesting ten business day deadline) and PCA (suggesting tencalendar day deadline).

174See letter from NSSGA.

104(e) of the Mine Act and MSHAregulations the agency is required tonotify the operator of the existence of such pattern. The proposed rule wouldimplement the Act’s requirement todisclose the receipt of such noticesduring the reporting period.

vi. A list of mines for which the issuer or a subsidiary received written notice

from MSHA of the potential to havesuch a pattern.

MSHA regulations state that MSHAwill give the operator written notice of the potential to have a pattern of violations of mandatory health or safetystandards that are of such nature ascould have significantly andsubstantially contributed to the causeand effect of coal or other mine healthor safety hazards under Section 104(e)of the Mine Act.159 The proposed rulewould implement the Act’s requirementto disclose the receipt of such noticesduring the reporting period.


We received two commentssupporting the proposed requirementsthat the total number of 104(b) orders,citations and orders for unwarrantablefailures, flagrant violations andimminent danger orders be reported.160 We did not receive any comments onthe proposed requirements to disclose alist of mines that receive notice of apattern or potential pattern of violations.

(2) Final Rule

Consistent with the proposal, we areadopting final rules requiring eachissuer that is required under Section1503(a) to provide mine safetydisclosure to provide, for each coal orother mine for the time period covered

by the report:• The total number of orders issued

under Section 104(b) of the Mine Act;• The total number of citations and

orders for unwarrantable failure of themine operator to comply withmandatory health and safety standardsunder Section 104(d) of the Mine Act;

• The total number of flagrant

violations under Section 110(b)(2) of theMine Act;• The total number of imminent

danger orders issued under Section107(a) of the Mine Act;

• A list of mines for which the issueror a subsidiary received written noticefrom MSHA of a pattern of violations of mandatory health or safety standardsthat are of such nature as could havesignificantly and substantially

contributed to the cause and effect of coal or other mine health or safetyhazards under Section 104(e) of theMine Act; and

• A list of mines for which the issueror a subsidiary received written noticefrom MSHA of a potential to have sucha pattern of violations of mandatoryhealth or safety standards.

B. Form 8–K Filing Requirement

Section 1503(b) of the Act requireseach issuer that is an operator, or has asubsidiary that is an operator, of a coalor other mine to report on Form 8–K thereceipt of certain notices fromMSHA.161 We are adopting revisions toForm 8–K to add new Item 1.04 toimplement this requirement.

2. Disclosure Requirements andDeadline


We proposed to amend Form 8–K to

add new Item 1.04, which wouldrequire filing of Form 8–K within four business days of the receipt by an issuer(or a subsidiary of the issuer) of:

• An imminent danger order underSection 107(a) of the Mine Act; 162

• Written notice from MSHA of apattern of violations of mandatoryhealth or safety standards that are of such nature as could have significantlyand substantially contributed to thecause and effect of coal or other minehealth or safety hazards under Section104(e) of the Mine Act; 163 or

• Written notice from MSHA of thepotential to have a pattern of such

violations.164 For each such triggering event, we

proposed that new Item 1.04 of Form 8–K require disclosure of the date of receipt of the order or notice, thecategory of order or notice, and thename and location of the mine involved.


The Proposing Release noted that theevents that would trigger filing underproposed Item 1.04 are also events thatare required to be disclosed in periodicreports under Section 1503(a) of the Act

and our proposed Item 106 of Regulation S–K. We received comment

letters supporting adoption of the ruleas proposed, under which the ordersand notices that trigger the Form 8–Kfiling requirement would also bedisclosed in issuers’ periodic reports.165 Commentators noted that the events thatwould trigger the Form 8–K filing aresignificant, and expressed their viewthat because the events are already

monitored by the issuer, there wouldnot be an extra burden in reporting themtwice.166 However, other commentatorsindicated that the proposed rule should

be revised to minimize duplicativedisclosure.167 One commentator statedthat, because these orders and noticesare required to be reported in theissuer’s periodic reports, the proposedForm 8–K requirement is needlesslyduplicative and burdensome.168 Another commentator suggestedeliminating duplicative reporting byremoving the Form 8–K filingrequirement and allowing the

information to be reported only in theissuer’s periodic reports.169 Commentators that expressed a view

were generally supportive of theinformation proposed to be required inItem 1.04 of Form 8–K.170 Commentators also indicated that noadditional information beyond whatwas proposed should be required to bedisclosed.171

Some commentators supported theproposed four business day filing periodfor a Form 8–K under proposed Item1.04.172 Others suggested different filingdeadlines for the Form 8–K. Threecommentators supported longer filing

deadlines, such as seven or ten businessdays, in order to allow issuers toconduct analysis and provide moredetail or complete information about theevent.173 One commentator, drawing adistinction between the type of information required to be disclosedunder Section 1503 and other materialitems covered by Form 8–K,recommended that the Form 8–K berequired once a year, allowing issuers toprovide aggregate information about anysuch orders or notices received duringthe year.174 In addition, onecommentator requested clarification of





175See letter from DGS Law (noting that vacatedcitations are removed entirely from the MSHA dataretrieval system).

176See letter from NMA.

177See Sections II.A.3 and II.A.4.b above.

178We note that between the effective date of Section 1503(b) and November 30, 2011, there have been 116 Form 8–Ks filed to comply with thisprovision, and only five of them report that theorder was vacated within four business days of issuance of the order.

179See Exchange Act Rules 13a–11 and 15d–11[17 CFR 240.13a–11 and 15d–11].

180Referenced in 17 CFR 249.306.181See Exchange Act Rule 13a–6 [17 CFR

240.13a–16].182See letters from AngloGold, Cleary, NMA,

NYSBA, and Rio Tinto. See also advance commentletter from Rio Tinto.

183See letters from Estess, SIF and Trillium.184See letter from Estess.

185This approach is consistent with the mannerin which the Commission implemented Sections306 and 406 of the Sarbanes-Oxley Act of 2002. SeeInsider Trades During Pension Fund Blackout Periods, SEC Release No. 34–47225 (Jan. 22, 2003)[68 FR 4338], and Disclosure Required by Sections406 and 407 of the Sarbanes-Oxley Act of 2002, SECRelease No. 33–8177 (Jan. 23, 2003) [68 FR 5110].

186Rules 13a–11(c) and 15d–11(c) each providesthat ‘‘[n]o failure to file a report on Form 8–K that

Continued

the filing requirement for an order ornotice vacated by MSHA prior to thefiling deadline for the Form 8–K,175 andanother commentator recommendedthat the final rule provide that if theorder triggering the Form 8–K filing isvacated, dismissed or reduced below areportable level during the reportingperiod, the Form 8–K filing is not

required.176

c. Final Rule

After considering the comments, weare adopting new Item 1.04 to Form 8–K as proposed. Under the final rule,issuers are required to file a Form 8–Kunder new Item 1.04 no later than four

business days after the receipt by theissuer (or a subsidiary of the issuer) of an imminent danger order underSection 107(a) of the Mine Act, writtennotice from MSHA of a pattern of violations of mandatory health or safetystandards that are of such nature as

could have significantly andsubstantially contributed to the causeand effect of coal or other mine healthor safety hazards under Section 104(e)of the Mine Act or written notice fromMSHA of the potential to have a patternof such violations. Item 1.04 of Form 8–K requires disclosure of the date of receipt of the order or notice, thecategory of order or notice, and thename and location of the mine involved.

As discussed above, these orders andnotices are also required to be disclosedunder Section 1503(a) of the Act inissuers’ periodic reports. Although wehave considered the views of commentators that the disclosure isduplicative, we believe the plainlanguage of Section 1503 of the Actrequires such orders and notices to bereported in both issuers’ Forms 8–K andtheir periodic reports, and note thatissuers generally seem to have beencomplying with these requirementssince Section 1503(b) became effective.We have also considered commentators’views with respect to the filing deadlinefor the required Form 8–K. AlthoughSection 1503(b) of the Act does notspecify a filing deadline, we continue to

believe that, because the triggering

events are clear and do not requiremanagement to make rapid materialityjudgments, the customary Form 8–Kfour business day deadline providesadequate time for issuers to prepareaccurate and complete information.

We understand there is a possibilitythat an order or notice could be issuedand subsequently vacated by MSHA

within the four business day timeperiod for filing the Form 8–K.However, as discussed above withrespect to reporting of dismissed,reduced or contested matters,177 we

believe the language of Section 1503(b)of the Act dictates that the ‘‘receipt’’ of the specified orders or notices must bedisclosed. We note that issuers may

include additional disclosure explainingthe status of these orders and notices if they choose to do so.178

3. Treatment of Foreign Private Issuers


Our proposed rule would not extendthe requirement to file current reportson Form 8–K to foreign private issuers.The Proposing Release noted thatforeign private issuers are not requiredto file current reports on Form 8–K.179 Instead, a foreign private issuer isrequired to furnish under the cover of Form 6–K 180 copies of all information

that it makes, or is required to make,public under the laws of its jurisdictionof incorporation, files, or is required tofile, under the rules of any stockexchange, or otherwise distributes to itssecurity holders.181


Several commentators agreed with ourproposed approach not to apply thecurrent reporting requirements of Section 1503(b) of the Act to foreignprivate issuers. These commentatorsnoted that this approach is consistentwith the statutory text of Section1503(b), which refers only to Form 8–K,and with the Commission’s currentframework of reporting for foreignprivate issuers.182 Other commentatorsindicated that foreign private issuersshould be required to file a Form 8–Kto disclose information about the receiptof the specified orders and notices.183 One of these commentators expressedthe view that the reporting requirementsshould be as equal as possible for allissuers so that U.S. issuers are notplaced at a disadvantage.184

c. Final Rule

After considering the comments, wehave determined not to apply the newForm 8–K reporting requirement toforeign private issuers and are adoptingthe requirement as proposed. Althoughwe are mindful of concerns that thedisclosure requirement should be asequal as possible in order to avoiddisadvantaging U.S. issuers incomparison to foreign private issuers,we continue to believe that thisapproach is consistent with Section1503(b) of the Act, which referencesForm 8–K, a form applicable only todomestic issuers, not to foreign privateissuers, and the Commission’s currentframework of reporting for foreignprivate issuers.185

Although they will not be subject tothe Form 8–K requirement, foreignprivate issuers will not be able to avoiddisclosure of the orders and noticesspecified in Item 1.04 of Form 8–K. As

described above, we are adoptingamendments to Forms 20–F and 40–Fthat require a foreign private issuer todisclose in each annual report the itemsdescribed in Section 1503(a) of the Act.This is the same information that isrequired of domestic issuers, includingdisclosure of the receipt during theforeign private issuer’s past fiscal yearof any imminent danger order issuedunder Section 107(a) of the Mine Act,written notice from MSHA of a patternof violations of mandatory health orsafety standards that are of such anature as could have significantly and

substantially contributed to the causeand effect of coal or other mine healthor safety hazards under Section 104(e)of the Mine Act, and written notice fromMSHA of the potential to have a patternof such violations.

C. Amendment to General InstructionI.A.3.(b) of Form S–3


Under our existing rules, the untimelyfiling on Form 8–K of certain items doesnot result in loss of Form S–3 eligibility,so long as Form 8–K reporting is currentat the time the Form S–3 is filed. Our

existing rules also provide a limited safeharbor from liability under Section 10(b)or Rule 10b–5 under the Exchange Actfor certain Form 8–K items.186 We





is required solely pursuant to Item 1.01, 1.02, 2.03,2.04, 2.05, 2.06, 4.02(a), 5.02(e) or 6.03 of Form 8–K shall be deemed a violation of’’ Section 10(b) of the Exchange Act or Rule 10b–5 thereunder.

187See, e.g., letters from Chevron, Cleary, DGSLaw, NMA, NYSBA, SIF and Trillium. Onecommentator noted with approval that, as aconsequence, failure to file a Form 8–K withSection 1503(b) disclosure would not result instatus as an ‘‘ineligible issuer’’ pursuant to Rule 405under the Securities Act. See letter from Cleary.

188See letter from Chevron.189See letter from DGS Law.190See letter from NMA.191See, e.g. letters from SIF and Trillium.

192See letters from AngloGold, Chevron, Cleary,NMA and NYSBA.

193See letter from AngloGold.194See letters from Chevron and NMA.195See Selective Disclosure and Insider Trading,

SEC Release No. 33–7881 (Aug. 15, 2000) [65 FR51715]; Additional Form 8–K DisclosureRequirements and Acceleration of Filing Date, SECRelease No. 33–8400 (March 16, 2004) [69 FR15594] (the ‘‘Additional Form 8–K DisclosureRelease’’).

196See Additional Form 8–K Disclosure Releaseat 69 FR 15607.

19744 U.S.C. 3501 et seq.19844 U.S.C. 3507(d) and 5 CFR 1320.11.199Forms 20–F and 40–F may also be used by

foreign private issuers to register a class of securities under the Exchange Act. In addition,Form 20–F sets forth many of the disclosurerequirements for registration statements filed byforeign private issuers under the Securities Act.

proposed to amend General InstructionI.A.3.(b) of Form S–3 to provide that anuntimely filing on Form 8–K regardingnew Item 1.04 would not result in lossof Form S–3 eligibility. We did notpropose to include new Item 1.04 in thelist in Rules 13a–11(c) and 15d–11(c)under the Exchange Act of Form 8–Kitems eligible for the limited safe harbor

from liability.


Commentators generally supportedour proposal to amend GeneralInstruction I.A.3(b) of Form S–3 to addproposed Item 1.04 to the list of itemson Form 8–K with respect to which anissuer’s failure timely to file the Form8–K will not result in the loss of FormS–3 eligibility.187 One commentatorindicated that proposed Item 1.04 issimilar to the existing exceptionsprovided in Form S–3, and expressed its

view that, but for the statutoryrequirement to file current reports, for adiversified company engaging in miningoperations, an individual shutdown ornotice would not be material to thecompany and shareholders.188 Similarly, another commentator notedthat when compared to other items thathave been specified as not affectingForm S–3 eligibility, Item 1.04 would beno more significant than the other items,particularly in light of the absence of amateriality threshold for the reportingobligation under the proposed item andthe range of issues, particularly under

107(a) of the Mine Act, that can triggerthe disclosure requirement.189 Onenoted that a delay in reportinginformation that is typically notmaterial to the issuer should not affectthe issuer’s Form S–3 eligibility.190

We received some support for ourproposal not to include Item 1.04 in thelist of items in Rules 13a–11(c) and15d–11(c) with respect to which thefailure to file a report on Form 8–K willnot be deemed to be a violation of Section 10(b) or Rule 10b–5.191 However, other commentators indicatedthat the Commission should add Item

1.04 to the safe harbors.192 Onecommentator noted that suchinformation will be made public by theMSHA data retrieval system.193 Othersnoted that disclosures regarding minesafety are typically immaterial eventsand the failure to timely report them onForm 8–K should not be considered aviolation of Section 10(b) or Rule 10b–

5.194

c. Final Rule

The final rule adds Item 1.04 to thelist of Form 8–K items in GeneralInstruction I.A.3.(b) of Form S–3 toprovide that untimely filing of the newitem will not result in the loss of FormS–3 eligibility. Commentators weresupportive of this approach, which wecontinue to believe is appropriate.Section 1503(b) of the Act does notaddress the Securities Act implicationsof a failure to timely file a Form 8–K.In addition, as noted in the Proposing

Release, in the past when we haveadopted new disclosure requirementsthat differed from the traditionalperiodic reporting obligations of companies, we have acknowledgedconcerns about the potentially harshconsequences of the loss of Form S–3eligibility, and addressed such concerns

by specifying that untimely filing of Forms 8–K relating to certain topicswould not result in the loss of Form S–3 eligibility.195

Although we are mindful of commentators’ concerns, we are notincluding Item 1.04 in the list of items

in Rules 13a–11(c) and 15d–11(c) withrespect to which the failure to file areport on Form 8–K will not be deemedto be a violation of Section 10(b) or Rule10b–5. We continue to believe, as weexpressed when we adopted the limitedsafe harbor from liability under Section10(b) or Rule 10b–5 under the ExchangeAct for certain Form 8–K items, that thesafe harbor is appropriate if thetriggering event for the Form 8–Krequires management to make a rapidmateriality determination.196 The filingof an Item 1.04 Form 8–K is triggered byan event that does not requiremanagement to make a rapid materialitydetermination, and we continue to

believe that it is not necessary to extendthe safe harbor to this new item.

III. Paperwork Reduction Act

A. Background

Certain provisions of the finalamendments contain ‘‘collection of information’’ requirements within themeaning of the Paperwork ReductionAct of 1995 (‘‘PRA’’).197 We publisheda notice requesting comment on thecollection of information requirementsin the Proposing Release for the ruleamendments and we submitted theserequirements to the Office of Management and Budget (‘‘OMB’’) forreview in accordance with the PRA.198 The titles for the collection of information are:

(A) ‘‘Regulation S–K’’ (OMB ControlNo. 3235–0071);

(B) ‘‘Form 10–K’’ (OMB Control No.3235–0063);

(C) ‘‘Form 10–Q’’ (OMB Control No.

3235–0070);(D) ‘‘Form 8–K’’ (OMB Control No.3235–0060);

(E) ‘‘Form 20–F’’ (OMB Control No.3235–0288); and

(F) ‘‘Form 40–F’’ (OMB Control No.3235–0381).

These regulations and forms wereadopted under the Securities Act andthe Exchange Act. They set forth thedisclosure requirements for periodicand current reports filed by companiesto inform investors.199 The hours andcosts associated with preparingdisclosure, filing forms and retainingrecords constitute reporting and cost

burdens imposed by each collection of information. An agency may notconduct or sponsor, and a person is notrequired to respond to, a collection of information unless it displays acurrently valid OMB control number.

B. Summary of the Final Rules

As discussed in more detail above, weare adopting new rule and formamendments to implement Section 1503of the Act. Section 1503(a) requiresissuers that are operators, or that havea subsidiary that is an operator, of a coalor other mine to disclose in their

periodic reports filed with theCommission information regardingspecified health and safety violations,orders and citations, related assessmentsand legal actions, and mining-relatedfatalities. Section 1503(b) of the Act





200See 30 CFR 50.10.

20130 CFR 50.10 and 50.20.202While Form 20–F may be used by any foreign

private issuer, Form 40–F is only available to aCanadian issuer that is eligible to participate in theU.S.-Canadian Multijurisdictional DisclosureSystem.

203See new Item 16H under Part II of Form 20–F and paragraph (16) to General Instruction B of Form 40–F.

204See letter from Rio Tinto.

mandates the filing of a Form 8–Kdisclosing the receipt of certain ordersand notices from MSHA.

We are adopting new Items 104 and601(b)(95) of Regulation S–K andamending Forms 10–Q, 10–K, 20–F and40–F under the Exchange Act toimplement the disclosure requirementset forth in Section 1503(a) of the Act.

We are adopting new Item 1.04 of Form8–K to implement the requirement of Section 1503(b) of the Act. In addition,we are amending General InstructionI.A.3(b) of Securities Act Form S–3.

Issuers are currently required tocomply with the provisions of Section1503 of the Act; therefore, the Act hasalready increased the burdens and costsfor issuers by requiring the disclosureset forth in Sections 1503(a) and (b) of the Act. We note that Section 1503 of the Act imposed the disclosurerequirements set forth in Sections1503(a) and (b) of the Act, regardless of whether the Commission adopts rules toimplement those provisions. Ouramendments incorporate the Act’srequirements into Regulation S–K andrelated forms.

The disclosure requirement of Section1503(a)(1)(G) of the Act, which requiresdisclosure of mining-related fatalities,overlaps to some extent with adisclosure requirement under MSHArules. MSHA requires mine operators toreport immediately any death of anindividual at a mine,200 which MSHAthen makes available to the publicthrough its data retrieval system on itsWeb site, http://www.msha.gov.

MSHA’s disclosure requirement appliesto all mine operators under MSHA’sjurisdiction, while the disclosurerequirement of Section 1503(a)(1)(G) of the Act requires reporting by a subset of that group, specifically, issuers that arerequired to file reports with theCommission pursuant to Section 13(a)or 15(d) of the Exchange Act and thatare operators (or have a subsidiary thatis an operator) of a coal or other mine.We note that, while there is someoverlap, the disclosure requirement of Section 1503(a)(1)(G) of the Act iscurrently in effect by operation of the

statute, and the amendments we areadopting simply incorporate the Act’srequirements into our rules and forms.We believe our rules must incorporatethis provision of the Act in order to beconsistent with the Act.

Most of the information called for bythe new disclosure requirements ispublicly disclosed by MSHA andreadily available to issuers, who receivenotices, orders and citations directlyfrom MSHA and can also access the

information via MSHA’s data retrievalsystem. Information regarding pendinglegal actions is known to issuers, andcertain information about orders andcitations that are in contest before theFMSHRC is also available via MSHA’sdata retrieval system. Further, as notedabove, the disclosure item for periodicreports requiring disclosure of mining-

related fatalities is already subject to acollection of information under MSHAregulations,201 and fatality informationalso is made public via MSHA’s dataretrieval system. Our amendmentsincorporate the Act’s requirements intoRegulation S–K and related forms.

We anticipate that new Items 104 and601(b)(95) of Regulation S–K willincrease the disclosure burdens forannual reports on Form 10–K andquarterly reports on Form 10–Q thatexisted prior to enactment of the Act.Because Regulation S–K does not applydirectly to Forms 20–F and 40–F,202 we

are amending those forms to include thesame disclosure requirements as thoseapplicable to issuers that are not foreignprivate issuers, and therefore weanticipate that the disclosure burdensthat existed prior to the enactment of the Act for annual reports on Forms 20–F and 40–F will increase.203 Weanticipate that new Item 1.04 of Form 8–K will increase the disclosure burdenthat existed prior to enactment of theAct for current reports on Form 8–K byrequiring issuers to file a Form 8–Kupon receipt of three types of notices ororders from MSHA relating to mine

health and safety concerns andspecifying the information requiredabout the orders or notices required to

be disclosed.Compliance with the amendments by

affected issuers will be mandatory.Responses to the information collectionswill not be kept confidential, and therewill be no mandatory retention periodfor the information disclosed.

C. Summary of Comment Letters and Revisions to Proposals

In the Proposing Release, werequested comment on the PRAanalysis. We received one comment

letter that addressed our overall burdenestimates for the proposedamendments.204 The commentatorstated its belief that the estimates

included in the Proposing Release wereon the low end of the scale. Thecommentator noted its view that, due tothe number and variety of operationsthat must be included in the reports andthe corporate structure and segregationof responsibilities that are required in amultinational organization with anumber of individual operating

subsidiaries, the estimate of burdenhours to manage, assemble, track, verifyand prepare the reports should behigher. In the commentator’sexperience, the necessary internalprocedures and controls to accuratelyassemble, track and report the Section1503 mine safety information and theactual hourly burden alone would be 10to 15 times the estimate made by theCommission, and the outsideprofessional burden would likewise beseveral orders of magnitude greater thanthe estimate.

After consideration of the comment

received, we have increased the hoursand costs from the proposal, althoughwe have not increased such estimates bythe magnitude suggested by thecommentator, taking into accountseveral substantive modifications wehave made to the proposedamendments. We are adopting finalrules that in some respects are less

burdensome than the proposals. Wehave simplified the reporting of information with respect to proposedassessments of penalties and pendinglegal actions, and we are not adoptingthe proposed additional disclosure item.We also have changed the time period

requirement for periodic reporting in amanner that will lessen the burden forissuers by requiring disclosure only forthe period covered by the report.Therefore, we have adjusted ourestimates to reflect a decrease in hoursand costs from the proposal, but alsoreflecting an increase in hours and costs

based on the comment received.

D. Revisions to PRA Reporting and Cost Burden Estimates

We anticipate that the rule and formamendments will increase the burdensand costs for issuers subject to the

amendments. For purposes of the PRA,in the Proposing Release we estimatedthe total annual increase in paperwork

burden for all affected companies tocomply with the proposed collection of information requirements to beapproximately 1,677 hours of companypersonnel time and approximately$263,500 for the services of outsideprofessionals. These estimates includedthe time and the cost of implementingdisclosure controls and procedures,preparing and reviewing disclosure,filing documents and retaining records.


http://www.msha.gov/

http://www.msha.gov/




205We estimate that approximately 100companies with a Form 10–Q filing obligationwould be affected by the proposed rule and formamendments. Each such company would file threequarterly reports on Form 10–Q per year. 100companies x 3 Forms 10–Q per year=300 Forms 10–Q.

As discussed above, as a result of thechanges we have made from theproposals, and taking into considerationthe comment received, we areincreasing the total PRA burden andcost estimates that we originallysubmitted to OMB in connection withthe proposed amendments. We estimatethe annual incremental paperwork

burden for all companies to prepare thedisclosure required under our ruleamendments to be approximately 5,775hours of company personnel time andapproximately $1,090,000 for theservices of outside professionals.

In deriving our new estimates, weassume that:

• For Forms 10–K, 10–Q and 8–K, anissuer incurs 75% of the annual burdenrequired to produce each form, andoutside firms, including legal counsel,accountants and other advisors retained

by the issuer, incur 25% of the annual burden required to produce the form atan average cost of $400 per hour; and

• For Forms 20–F and 40–F, a foreignprivate issuer incurs 25% of the annual

burden required to produce each form,and outside firms retained by the issuerincur 75% of the burden require toproduce each form at an average cost of $400 per hour.The portion of the burden carried byoutside professionals is reflected as acost, while the portion of the burdencarried by the company internally isreflected in hours.

We have based our new burden hourand cost estimates of the effect that theadopted rule and form amendments

would have on those collections of information primarily on ourunderstanding that the informationrequired to be disclosed is readilyavailable to issuers, and that thereforethe burden imposed by the disclosurerequirements is mainly in formatting theinformation in order to comply with ourdisclosure requirements and ensuringthat appropriate disclosure controls andprocedures are in place to facilitatereporting of the information. In thisregard, we note that mine operatorsreceive the relevant notices, citationsand similar information directly from

MSHA, and that issuers could alsoaccess such information via MSHA’spublicly available data retrieval system.Information regarding pending legalactions is known to issuers, and certaininformation about orders and citationsthat are in contest before the FMSHRCis also available via MSHA’s dataretrieval system. Further, mineoperators are required by MSHAregulations to report all fatalities toMSHA immediately, and informationabout mining-related fatalities also ismade public via MSHA’s data retrieval

system. In preparing the burden hourand cost estimates, we took intoconsideration the number of issuers thatfiled reports with the Commissionincluding information required underSection 1503 since its effective date.

1. Regulation S–K

While the rule and form amendments

make revisions to Regulation S–K, thecollection of information requirementsfor that regulation are reflected in the

burden hours estimated for Forms 10–Kand 10–Q. The rules in Regulation S–Kdo not impose any separate burden.Consistent with historical practice, weare retaining an estimate of one burdenhour to Regulation S–K foradministrative convenience.

2. Form 10–K

Based on a review of companies filingunder certain SICs, as well as a reviewof companies that are currentlyproviding disclosure of mine safetymatters in Commission filings inaccordance with Section 1503 of theAct, we estimate that, of the 13,545Form 10–Ks filed annually,approximately 100 are filed bycompanies that operate, or have asubsidiary that operates, a mine subjectto the Mine Act, and that therefore will

be affected by the rule and formamendments. For purposes of the PRA,we assume that each such filer wouldhave disclosures about mine safetymatters to include in its Form 10–K, andthat preparation of the Form 10–Kdisclosure would involve gathering the

information for the fourth quarter of thefiscal year, consolidating it withinformation reported in the priorquarters of the fiscal year, andformatting the information for inclusionin the annual report. We estimate thatthe rule and form amendments wouldadd 20 burden hours to the total burdenhours required to produce each Form10–K.

3. Form 20–F

Based on a review of companies filingunder certain SICs, as well as a reviewof companies that are currently

providing disclosure of mine safetymatters in Commission filings inaccordance with Section 1503 of theAct, we currently estimate that of the942 Form 20–F annual reports filedannually by foreign private issuers,approximately 15 are filed bycompanies that operate, or have asubsidiary that operates, a mine subjectto the Mine Act, and that thereforewould be affected by the rule and formamendments. For purposes of the PRA,we assume that each such filer wouldhave disclosures about mine safety

matters to include in its Form 20–F. Weestimate that the rule and formamendments would add 40 burdenhours to the total burden hours requiredto produce each Form 20–F.

4. Form 40–F

Based on a review of companies filingunder certain SICs, as well as a review

of companies that are currentlyproviding disclosure of mine safetymatters in Commission filings inaccordance with Section 1503 of theAct, we currently estimate that of the205 Form 40–F annual reports filedannually by foreign private issuers,approximately 15 are filed bycompanies that operate, or have asubsidiary that operates, a mine subjectto the Mine Act, and that thereforewould be affected by the rule and formamendments. For purposes of the PRA,we assume that each such filer wouldhave disclosures about mine safety

matters to include in its Form 40–F. Aswith Form 20–F, we estimate that therule and form amendments would add40 burden hours to the total burdenhours required to produce each Form40–F annual report.

5. Form 10–Q

Based on a review of companies filingunder certain SICs, as well as a reviewof companies that are currentlyproviding disclosure of mine safetymatters in Commission filings inaccordance with Section 1503 of theAct, we estimate that, of the 32,462Form 10–Qs filed annually,

approximately 300 are filed bycompanies that operate, or have asubsidiary that operates, a mine subjectto the Mine Act, and that thereforewould be affected by the rule and formamendments.205 For purposes of thePRA, we assume that each such filerwould have disclosures about minesafety matters to include in each Form10–Q. We further estimate that the ruleand form amendments would add 15

burden hours to the total burden hoursrequired to produce each Form 10–Q.

6. Form 8–K

We estimate that companies annuallyfile 116,860 Form 8–Ks. Onlycompanies that are not foreign privateissuers and are operators, or havesubsidiaries that are operators, of minessubject to the Mine Act are required tocomply with the new Form 8–K





206See U.S. Department of Labor, Office of Inspector General, In 32 Years MSHA Has Never Successfully Exercised Its Pattern of ViolationsAuthority, Report Number 05–10–005–06–001(Sept. 29, 2010). According to data available onMSHA’s Web site, 549, 630 and 562 imminent

danger orders under Section 107(a) were issuedduring fiscal 2011, 2010 and 2009, respectively. SeeViolations Data Set (as of December 9, 2011),available at http://www.msha.gov/ OpenGovernmentData/OGIMSHA.asp (on file withthe Division of Corporation Finance). Note that this

number includes all imminent danger orders issuedto all companies subject to MSHA’s jurisdiction, notonly to reporting companies that are subject to thedisclosure requirements of Section 1503 of the Act.

207See http://www.msha.gov/DRS/ DRSHOME.HTM.

requirement. For purposes of the PRA,we estimate that there will beapproximately 100 Form 8–K filersunder new Item 1.04, which is based onour estimate of the number of Form 10–K filers that operate, or have asubsidiary that operates, a mine subjectto the Mine Act, and that thereforewould be affected by the rule and form

amendments. In addition, weunderstand that the triggering events forForm 8–K filing set forth in Section1503(b)(2)—the receipt of written noticefrom MSHA that the coal or other minehas a pattern of violations or thepotential to have such a pattern—arerelatively rare, while the triggering

event set forth in Section 1503(b)(1)—the receipt of an imminent dangerorder—is more common.206 Forpurposes of this calculation, we assumethat each potential filer under Item 1.04of Form 8–K would file four Forms 8–K per year under new Item 1.04 and weestimate that the amendments to Form8–K would add 2 burden hours to the

total burden hours required to produceeach Form 8–K.

E. Summary of Changes to Annual Compliance Burden in Collection of Information

The table below illustrates the totalincremental annual compliance burden

of the collection of information in hoursand in cost under the amendments forannual reports, quarterly reports andcurrent reports on Form 8–K under theExchange Act (Table 1). There is nochange to the estimated burden of thecollection of information underRegulation S–K because the burdensthat Regulation S–K imposes arereflected in our revised estimates for theforms. The burden estimates werecalculated by multiplying the estimatednumber of annual responses by theestimated average number of hours itwould take a company to prepare andreview the new disclosure requirements.

FormCurrentannual

response

Currentburdenhours

Increase inburden hours

Proposedburdenhours

Currentprofessional

costs($)

Increase inprofessional

costs($)

Proposedprofessional

costs($)

10–K ......................... 13,545 21,361,898 1,500 21,363,398 2,848,253,000 200,000 2,848,453,00020–F ......................... 942 622,871 150 623,021 743,047,230 180,000 743,227,230

40–F ......................... 205 21,884 150 22,034 26,260,500 180,000 26,440,50010–Q ........................ 32,462 4,559,793 3,375 4,563,168 607,972,400 450,000 608,422,4008–K ........................... 116,860 502,839 600 503,439 67,045,200 80,000 67,125,200

IV. Cost-Benefit Analysis

A. Introduction

We are adopting the rule and formamendments discussed in this release toimplement the disclosure requirementsset forth in Section 1503 of the Act.Section 1503(a) of the Act requiresissuers that are operators, or that havea subsidiary that is an operator, of a coalor other mine to disclose in theirperiodic reports filed with theCommission information regardingspecified health and safety violations,orders and citations, related assessmentsand legal actions, and mining-relatedfatalities. Section 1503(b) of the Actmandates the filing of a Form 8–Kdisclosing the receipt of certain ordersand notices from the Mine Safety andHealth Administration.

As discussed in detail above, thedisclosure requirements set forth inSection 1503 of the Act refer to and are

based on the safety and healthrequirements applicable to mines underthe Mine Act and administered byMSHA. MSHA inspectors issuecitations, orders and decisions directlyto mine operators during the course of inspections and MSHA assesses andcollects civil monetary penalties forviolations. Mine operators receive the

relevant notices, citations and similarinformation directly from MSHA, andthis information is publicly available onMSHA’s data retrieval system on itsWeb site on a mine-by-mine basis.207 Information regarding pending legalactions is known to issuers, and certaininformation about orders and citationsthat are in contest before the FMSHRCis also available via MSHA’s dataretrieval system. Further, mineoperators are required by MSHAregulations to report all fatalities toMSHA immediately, and informationabout mining-related fatalities also ismade public via MSHA’s data retrievalsystem. Therefore, we believe most of the information required to be disclosedunder Section 1503 of the Act and ourfinal rules is readily available to issuers.Further, because the disclosurerequirements set forth in Section 1503are currently in effect, we assume thatissuers have already developed thenecessary controls and procedures toreview and prepare the information

required by Section 1503 of the Act forfiling with the Commission.

We are adopting amendments to Form10–K, Form 10–Q, Form 20–F and Form40–F to provide for the disclosurerequired by Section 1503(a) of the Act.New Item 104 of Regulation S–K, new

Item 16H of Form 20–F and newParagraph (16) of General Instruction Bof Form 40–F detail the information to

be disclosed in accordance with Section1503(a) of the Act, and the amendmentto Item 601 of Regulation S–K sets forththe exhibit requirement for Form 10–Kand Form 10–Q for the informationrequired to be disclosed under Item 104of Regulation S–K. We are also adoptingamendments to Form 8–K to add newItem 1.04 to implement the requirementimposed by Section 1503(b) of the Act.Finally, we are amending GeneralInstruction I.A.3.(b) of Form S–3 to addnew Form 8–K Item 1.04 to the list of Form 8–K items the untimely filing of which will not result in loss of Form S–3 eligibility.

We did not receive any commentletters addressing the cost-benefitanalysis included in the ProposingRelease. The Commission is sensitive tothe costs and benefits that will beimposed by the rule and formamendments. The discussion belowfocuses on the costs and benefits of thedecisions made by the Commission tofulfill the mandates of the Act, ratherthan the costs and benefits of themandates of the Act itself. However, tothe extent that the Commission helpsachieve the benefits intended by the


http://www.msha.gov/OpenGovernmentData/OGIMSHA.asp











208For purposes of the PRA, we estimate the totalcost of the disclosure to be approximately 5,775hours of company personnel time andapproximately $1,090,000 for the services of outsideprofessionals. However, this amount reflects thecosts associated with the disclosure requirement setforth in Section 1503 of the Act. We do not believeour rules, which implement Section 1503, imposeany additional costs beyond those imposed by thestatute.

20915 U.S.C. 78w(a).

21015 U.S.C. 77b(b).21115 U.S.C. 78c(f).2125 U.S.C. 601.

Act, the two types of benefits are notentirely separable.

The final rule adheres closely to thestatutory mandate, which is already ineffect. We have determined not to adoptthe proposed requirements to provideadditional disclosure in periodic reportsaddressing the categories of violations,orders or citations disclosed in response

to the Section 1503(a) disclosurerequirement, or total dollar values of proposed penalty assessments fromMSHA outstanding as of the end of areporting period. We are adopting arequirement to disclose the total numberof legal actions involving each mine thatwere pending before the FMSHRC as of the last day of the reporting period, theaggregate number of legal actionsinstituted and the number resolvedduring the reporting period, and thenumbers of such legal actions inspecified categories, rather than themore burdensome proposed

requirement to provide more detaileddescriptions of legal actions pending before the FMSHRC and developmentsmaterial to previously reported pendinglegal actions. As a consequence, we

believe that the vast majority of thecosts and benefits of our final rules areattributable to the provisions of Section1503.

B. Benefits

The amended rules we are adoptingtoday are intended to implement therequirements of Section 1503 of the Act.Our Regulation S–K and formamendments implement the

requirements of the Act by reiteratingthe disclosure items listed in Section1503, which are currently in effect. Ourrule and form amendments specify forissuers how, in what form, and when toreport the mine safety informationrequired by the Act. These rules aredesigned to facilitate compliance withthe new statutory requirements. We

believe this should simplify thedisclosure obligation, promotecomparability and consistency of disclosure across issuers and timeperiods, and make the information moreaccessible for users, which will benefit

investors in their consideration of information about issuers’ mine healthand safety matters.

We believe that the requirement todisclose the total number of legalactions involving each mine that werepending before the FMSHRC as of thelast day of the reporting period, theaggregate number of legal actionsinstituted, the number resolved duringthe reporting period and the numbers of legal actions in specified categories willprovide useful information to usersabout overall developments in legal

actions and the extent of the mineoperators’ involvement in legal actions.

Our amendment to Form 8–K requiresadditional disclosure beyond thatspecifically designated by Section1503(b) of the Act by specifying theinformation required about the orders ornotices required to be disclosed, and

specifying a four business day filingdeadline for Forms 8–K filed under newItem 1.04. Our amendment to Form 8–K specifying that the form is to be filedwithin four business days of receipt of the order or notice designated underSection 1503(b) of the Act will provideissuers and investors with certaintyabout the timing of that disclosurerequirement.

C. Costs

The vast majority of the costsresulting from the disclosures required

by Section 1503 of the Act arise whether

or not we adopt rules to implement theSection. Moreover, the informationrequired to be disclosed under Section1503 is already subject to an extensiverecordkeeping regime under MSHA and,for the most part, is readily available toissuers via MSHA’s data retrievalsystem. Certain information, such asinformation regarding pending legalactions and mining-related fatalities, isknown to issuers, although they mayhave had to adopt new procedures tocapture and report the information inorder to comply with Section 1503. Theprimary costs to result from thisrulemaking are costs associated with theformatting and filing of the information.We believe that there are no significantincremental costs imposed as a result of our codification of the Section 1503requirements.208

V. Consideration of Impact on theEconomy, Burden on Competition andPromotion of Efficiency, Competitionand Capital Formation

Section 23(a)(2) of the ExchangeAct 209 requires us, when adopting rulesunder the Exchange Act, to consider theimpact that any new rule would have oncompetition. In addition, Section23(a)(2) prohibits us from adopting anyrule that would impose a burden oncompetition not necessary or

appropriate in furtherance of thepurposes of the Exchange Act.

Section 2(b) 210 of the Securities Actand Section 3(f) 211 of the Exchange Actrequire us, when engaging inrulemaking where we are required toconsider or determine whether an actionis necessary or appropriate in the publicinterest, to consider, in addition to the

protection of investors, whether theaction will promote efficiency,competition, and capital formation.

We did not receive any commentletters addressing the discussion of these issues included in the ProposingRelease. The amendments we areadopting will implement therequirements of Section 1503 of the Act,which imposed the substance of thedisclosure requirements set forth in ournew rules. We are not imposing anyadditional requirements in ourrulemaking that will impose a burdenon competition or have a significant

impact on capital formation.We believe that the rule and formamendments we are adopting willprovide direction and consistency as tohow, in what form, and when to reportthe relevant information. We believethat the specifications in the rulemakingwill improve the efficiency of thereporting process for issuers andprovide for a more efficient andeffective review of the information byinvestors.

The loss of eligibility by an issuer touse Form S–3 could restrict the abilityof the company to raise capital orincrease an issuer’s costs relating tocapital raising, and may be adisproportionately large negativeconsequence of an untimely filing of aForm 8–K. To address this potential

burden, we are revising the eligibilityrules under Form S–3 so that anuntimely filing of a report under newItem 1.04 of Form 8–K would not resultin a loss of eligibility to use that form.

VI. Final Regulatory Flexibility ActAnalysis

This Final Regulatory FlexibilityAnalysis has been prepared inaccordance with the Regulatory

Flexibility Act.212

It relates to revisionsto Regulation S–K and forms under theSecurities Act and the Exchange Actregarding disclosure about mine safety.

A. Reasons for, and Objectives of, theProposed Action

We are adopting rule amendments toimplement the disclosure requirementsset forth in Section 1503 of the Act.





213See letters from AFL-CIO, CalPERS, CalSTRS,EARTHWORKS, NMA, Rio Tinto, SIF, Trillium andUMWA.

214See letter from Estess.2155 U.S.C. 601(6).21617 CFR 230.157.21717 CFR 240.0–10(a).

Section 1503(a) of the Act requiresissuers that are operators, or that havea subsidiary that is an operator, of a coalor other mine to disclose in theirperiodic reports filed with theCommission information regardingspecified health and safety violations,orders and citations, related assessmentsand legal actions, and mining-related

fatalities. Section 1503(b) of the Actmandates the filing of a Form 8–Kdisclosing the receipt of certain ordersand notices from MSHA.

B. Significant Issues Raised by PublicComments

In the Proposing Release, werequested comment on any aspect of theInitial Regulatory Flexibility Analysis(‘‘IRFA’’), including how the proposedamendments could achieve theirobjective while lowering the burden onsmall entities, the number of smallentities that would be affected by theproposed amendments, the nature of thepotential impact of the proposedamendments on small entities discussedin the analysis, and how to quantify theimpact of the proposed amendments.We did not receive commentsspecifically addressing the IRFA.However, several commentatorsaddressed aspects of the proposed ruleamendments that could potentiallyaffect small entities. In particular,several commentators stated their belief that smaller companies should not beexempted from all or part of theamendments,213 while only onecommentator urged that we adopt a

modified reporting system for smallercompanies.214

C. Small Entities Subject to the Final Amendments

The amendments will affect somecompanies that are small entities. TheRegulatory Flexibility Act defines‘‘small entity’’ to mean ‘‘small

business,’’ ‘‘small organization,’’ or‘‘small governmental jurisdiction.’’ 215 The Commission’s rules define ‘‘small

business’’ and ‘‘small organization’’ forpurposes of the Regulatory FlexibilityAct for each of the types of entitiesregulated by the Commission. SecuritiesAct Rule 157 216 and Exchange Act Rule0–10(a) 217 define a company, other thanan investment company, to be a ‘‘small

business’’ or ‘‘small organization’’ if ithad total assets of $5 million or less onthe last day of its most recent fiscal year.

The new rules will affect small entitiesthat (i) are required to file reports underSection 13(a) or 15(d) of the ExchangeAct and (ii) operate, or have a subsidiarythat operates, a coal or other mine thatis subject to the Mine Act, and thereforeare required to provide mine safetydisclosure under Section 1503 of theAct. We estimate that there are

approximately 25 companies that wouldcurrently be required to provide theSection 1503 disclosure and that may beconsidered small entities. We note thatthere are a significant number of smallentities that are exploration stagemining companies that would berequired to provide the Section 1503disclosure if such companies were to

become operators, or have subsidiariesthat become operators, of coal or othermines subject to the Mine Act.

D. Reporting, Recordkeeping, and Other Compliance Requirements

The disclosure requirements areintended to implement the disclosurerequirements set forth in Section 1503of the Act. These amendments requiresmall entities that are required to filereports under Section 13(a) or 15(d) of the Exchange Act and operate, or havea subsidiary that operates, a coal orother mine to provide mine safetydisclosure under applicable rules andforms.

Small entities will be required toinclude the disclosure in their annualreport on Form 10–K, Form 20–F orForm 40–F and, if applicable, quarterlyreport on Form 10–Q and current report

on Form 8–K. We are amending Form10–K, Form 10–Q, Form 20–F and Form40–F to require the disclosure required

by Section 1503(a) of the Act. New Item104 of Regulation S–K, new Item 16H of Form 20–F and new Paragraph (16) of General Instruction B of Form 40–Fdetail the information to be disclosed inaccordance with Section 1503(a) of theAct, and the amendment to Item 601 of Regulation S–K sets forth the exhibitrequirement for Form 10–K and Form10–Q for the information required to bedisclosed under new Item 104 of Regulation S–K. We are also adopting

amendments to Form 8–K to add newItem 1.04 to implement the requirementimposed by Section 1503(b) of the Act.Finally, we are amending GeneralInstruction I.A.3.(b) of Form S–3 to addnew Form 8–K Item 1.04 to the list of Form 8–K items the untimely filing of which will not result in loss of Form S–3 eligibility.

E. Agency Action To Minimize Effect onSmall Entities

The Regulatory Flexibility Act directsus to consider alternatives that would

accomplish our stated objectives, whileminimizing any significant adverseimpact on small entities. In connectionwith the disclosure amendments, weconsidered the following alternatives:

(1) Establishing differing complianceor reporting requirements or timetableswhich take into account the resourcesavailable to smaller entities;

(2) Exempting smaller entities fromcoverage of the disclosure requirements,or any part thereof;

(3) The clarification, consolidation, orsimplification of disclosure for smallentities; and

(4) Use of performance standardsrather than design standards.

Section 1503 of the Act requires allentities, including small entities, thatare required to file reports underSection 13(a) or 15(d) of the ExchangeAct and operate, or have a subsidiarythat operates, a coal or other mine toprovide mine safety disclosure underapplicable rules and forms. Theserequirements apply without regard towhether we adopt rules to implementthem. The amendments implement thedisclosure requirements set forth inSection 1503 of the Act. Given thestatutory disclosure requirements inSection 1503 of the Act, the Act doesnot appear to contemplate separatecompliance or reporting requirementsfor smaller entities.

Our amendments would require clearand straightforward disclosure of theinformation required by Section 1503 of the Act. We generally have used designrather than performance standards in

connection with the amendments. Byspecifying in the Act the disclosurerequired, Congress appears to havecontemplated that consistent,comparable disclosure would beprovided. We believe that the specificdisclosure requirements in theamendments will promote consistentand comparable disclosure among allcompanies that operate, or have asubsidiary that operates, a coal or othermine. Further, based on our pastexperience, we believe that specificdisclosure requirements for thisinformation would be more useful to

investors than would a performancestandard. However, we note that,although we encourage tabularpresentation, we are not adopting aparticular presentation requirement forthe disclosure, so that each issuer hasflexibility to adopt a presentation it

believes is appropriate for its disclosure.We proposed additional disclosurerequirements that would have givengreater context to the informationrequired to be disclosed by Section1503. After further consideration, we arenot requiring such additional





disclosure, but issuers are permitted toinclude additional disclosure if theychoose to do so.

Currently, small entities are subject tosome different compliance or reportingrequirements under Regulation S–K andthe amendments would not affect theserequirements. The disclosurerequirements will apply to small entities

to the same extent as larger issuers. Wedo not believe these disclosures willcreate a significant new burden, and we

believe this approach is consistent withthe requirements of the Act.

VII. Statutory Authority and Text of The Amendments

The amendments contained in thisrelease are being adopted under theauthority set forth in Sections 7, 10, and19(a) of the Securities Act; Sections 12,13, 15 and 23 of the Exchange Act andSection 1503 of the Dodd-Frank WallStreet Reform and Consumer Protection

Act.List of Subjects in 17 CFR Parts 229,239 and 249

Reporting and recordkeepingrequirements, Securities.

Text of The Amendments

For the reasons set out in thepreamble, the Commission amends title17, chapter II, of the Code of FederalRegulations as follows:

PART 229—STANDARDINSTRUCTIONS FOR FILING FORMSUNDER SECURITIES ACT OF 1933,

SECURITIES EXCHANGE ACT OF 1934AND ENERGY POLICY ANDCONSERVATION ACT OF 1975—REGULATION S–K

■ 1. The authority citation for part 229continues to read in part as follows:

Authority: 15 U.S.C. 77e, 77f, 77g, 77h,77j, 77k, 77s, 77z–2, 77z–3, 77aa(25),77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 777iii,77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m,78n, 78o, 78u–5, 78w, 78ll, 78mm, 80a–8,80a–9, 80a–20, 80a–29, 80a–30, 80a–31(c),80a–37, 80a–38(a), 80a–39, 80b–11, and 7201et seq.; and 18 U.S.C. 1350, unless otherwisenoted.

* * * * *

■ 2. Section 229.104 is added to read asfollows:

§ 229.104 (Item 104) Mine safetydisclosure.

(a) A registrant that is the operator, orthat has a subsidiary that is an operator,of a coal or other mine shall provide theinformation specified below for the timeperiod covered by the report:

(1) For each coal or other mine of which the registrant or a subsidiary of

the registrant is an operator, identify themine and disclose:

(i) The total number of violations of mandatory health or safety standardsthat could significantly andsubstantially contribute to the cause andeffect of a coal or other mine safety orhealth hazard under section 104 of theFederal Mine Safety and Health Act of

1977 (30 U.S.C. 814) for which theoperator received a citation from theMine Safety and Health Administration.

(ii) The total number of orders issuedunder section 104(b) of such Act (30U.S.C. 814(b)).

(iii) The total number of citations andorders for unwarrantable failure of themine operator to comply withmandatory health or safety standardsunder section 104(d) of such Act (30U.S.C. 814(d)).

(iv) The total number of flagrantviolations under section 110(b)(2) of such Act (30 U.S.C. 820(b)(2)).

(v) The total number of imminentdanger orders issued under section107(a) of such Act (30 U.S.C. 817(a)).

(vi) The total dollar value of proposedassessments from the Mine Safety andHealth Administration under such Act(30 U.S.C. 801 et seq.).

Instruction to Item 104(a)(1)(vi):Registrants must provide the total dollarvalue of assessments proposed byMSHA relating to any type of violationduring the period covered by the report,regardless of whether the registrant haschallenged or appealed the assessment.

(vii) The total number of mining-related fatalities.

Instruction to Item 104(a)(1)(vii):Registrants must report all fatalitiesoccurring at a coal or other mine duringthe period covered by the report unlessthe fatality has been determined byMSHA to be unrelated to miningactivity.

(2) A list of coal or other mines, of which the registrant or a subsidiary of the registrant is an operator, that receivewritten notice from the Mine Safety andHealth Administration of:

(i) A pattern of violations of mandatory health or safety standardsthat are of such nature as could have

significantly and substantiallycontributed to the cause and effect of coal or other mine health or safetyhazards under section 104(e) of suchAct (30 U.S.C. 814(e)); or

(ii) The potential to have such apattern.

(3) Any pending legal action beforethe Federal Mine Safety and HealthReview Commission involving such coalor other mine.

Instruction to Item 104(a)(3): Theregistrant must report the total numberof legal actions that were pending before

the Federal Mine Safety and HealthReview Commission as of the last day of the time period covered by the report,as well as the aggregate number of legalactions instituted and the aggregatenumber of legal actions resolved duringthe reporting period. With respect to thetotal number of legal actions that werepending before the Federal Mine Safety

and Health Review Commission as of the last day of the time period covered

by the report, the registrant must alsoreport the number of such legal actionsthat are:

1. Contests of citations and ordersreferenced in Subpart B of 29 CFR part2700;

2. Contests of proposed penaltiesreferenced in Subpart C of 29 CFR part2700;

3. Complaints for compensationreferenced in Subpart D of 29 CFR part2700;

4. Complaints of discharge,

discrimination or interferencereferenced in Subpart E of 29 CFR part2700;

5. Applications for temporary relief referenced in Subpart F of 29 CFR part2700; and

6. Appeals of judges’ decisions ororders to the Federal Mine Safety andHealth Review Commission referencedin Subpart H of 29 CFR part 2700.

(b) Definitions. For purposes of thisItem:

(1) The term coal or other mine meansa coal or other mine, as defined insection 3 of the Federal Mine Safety and

Health Act of 1977 (30 U.S.C. 802), thatis subject to the provisions of such Act(30 U.S.C. 801 et seq.).

(2) The term operator has the meaninggiven the term in section 3 of theFederal Mine Safety and Health Act of 1977 (30 U.S.C. 802).

(3) The term subsidiary has themeaning given the term in Exchange ActRule 12b–2 (17 CFR 240.12b–2).

Instructions to Item 104:1. The registrant must provide the

information required by this Item asspecified by §229.601(b)(95) of thischapter. In addition, the registrant mustprovide a statement, in an appropriatelycaptioned section of the periodic report,that the information concerning minesafety violations or other regulatorymatters required by Section 1503(a) of the Dodd-Frank Wall Street Reform andConsumer Protection Act and this Itemis included in exhibit 95 to the periodicreport.■ 2. When the disclosure required bythis item is included in an exhibit to anannual report on Form 10–K, theinformation is to be provided for theregistrant’s fiscal year.





■ 3. Amend §229.601 by revisingparagraphs (a)(36) through (a)(98) in theexhibit table in paragraph (a), and

adding paragraph (b)(95), to read asfollows:

§ 229.601 (Item 601) Exhibits.

(a) * * *

Exhibit Table

* * * * *

EXHIBIT TABLE

Securities Act Forms Exchange Act Forms

S–1 S–3 S–4 1 S–8 S–11 F–1 F–3 F–4 1 10 8–K 2 10–D 10–Q 10–K

* * * * * * *(36) through (94) [Reserved] ....... N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A(95) Mine Safety Disclosure Ex-

hibit . ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... ... .. ... .. . ... ... .. . ... .. ... .. . ... ... .. . ... .. ... .. . ... ... .. . ... .. ... .. . ... ... .. . ... .. ... .. . ... ... .. . ... .. ... .. X X(96) through (98) [Reserved] . ... .. . ... .. ... .. .. .. ... .. . ... .. ... .. .. .. ... .. . ... .. ... .. .. .. ... .. . ... .. ... .. .. .. ... .. . ... .. ... .. .. .. ... .. . ... .. ... .. .. .. ... .. . ... .. ... ..

1An exhibit need not be provided about a company if: (1) With respect to such company an election has been made under Form S–4 or F–4to provide information about such company at a level prescribed by Form S–3 or F–3; and (2) the form, the level of which has been electedunder Form S–4 or F–4, would not require such company to provide such exhibit if it were registering a primary offering.

2A Form 8–K exhibit is required only if relevant to the subject matter reported on the Form 8–K report. For example, if the Form 8–K pertainsto the departure of a director, only the exhibit described in paragraph (b)(17) of this section need be filed. A required exhibit may be incorporatedby reference from a previous filing.

* * * * *(b) * * *(95) Mine Safety Disclosure Exhibit. A

registrant that is an operator, or that hasa subsidiary that is an operator, of a coalor other mine must provide theinformation required by Item 104 of Regulation S–K (§229.104 of thischapter) in an exhibit to its ExchangeAct annual or quarterly report. Forpurposes of this Item:

(1) The term coal or other mine meansa coal or other mine, as defined insection 3 of the Federal Mine Safety andHealth Act of 1977 (30 U.S.C. 802), thatis subject to the provisions of such Act

(30 U.S.C. 801 et seq).(2) The term operator has the meaning

given the term in section 3 of theFederal Mine Safety and Health Act of 1977 (30 U.S.C. 802).

(3) The term subsidiary has themeaning given the term in Exchange ActRule 12b–2 (17 CFR 240.12b–2).

* * * * *

PART 239—FORMS PRESCRIBEDUNDER THE SECURITIES ACT OF 1933


Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s,77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n,78o(d), 78u–5, 78w(a), 78ll(d), 77mm, 79e,79f, 79g, 79j, 79l, 79m, 79n, 79q, 79t, 40480a–2(a), 80a–3, 80a–8, 80a–9, 80a–10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, and80a–37, unless otherwise noted.

* * * * *

■ 5. Amend Form S–3 (referenced in§ 239.13) by revising General InstructionI.A.3.(b) to read as follows:

Note: The text of Form S–3 does not, andthis amendment will not, appear in the Codeof Federal Regulations.

FORM S–3—REGISTRATIONSTATEMENT UNDER THESECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

I. Eligibility Requirements for Use of Form S–3 * * *

A. Registrant Requirements. * * *3. * * *(b) has filed in a timely manner all

reports required to be filed during thetwelve calendar months and any portionof a month immediately preceding the

filing of the registration statement, otherthan a report that is required solelypursuant to Item 1.01, 1.02, 1.04, 2.03,2.04, 2.05, 2.06, 4.02(a), or 5.02(e) of Form 8–K (§249.308 of this chapter). If the registrant has used (during thetwelve calendar months and any portionof a month immediately preceding thefiling of the registration statement) Rule12b–25(b) (§240.12b–25(b) of thischapter) under the Exchange Act withrespect to a report or a portion of areport, that report or portion thereof hasactually been filed within the timeperiod prescribed by that rule.

* * * * *

PART 249—FORMS, SECURITIESEXCHANGE ACT OF 1934


Authority: 15 U.S.C. 78a et seq. and 7201et seq.; and 18 U.S.C. 1350, unless otherwisenoted.

* * * * *

■ 7. Amend Form 20–F (referenced in§ 249.220f) by adding Item 16H, and

adding Instruction 16 to the Instructionsas to Exhibits, of Form 20–F, to read asfollows:

Note: The text of Form 20–F does not, andthis amendment will not, appear in the Codeof Federal Regulations.

FORM 20–F

* * * * *

Item 16H. Mine Safety Disclosure

If the registrant is the operator, or hasa subsidiary that is an operator, of a coal

or other mine, include the informationset forth below for the time periodcovered by the annual report. In anappropriately captioned section of theannual report, provide a statement thatthe information concerning mine safetyviolations or other regulatory mattersrequired by Section 1503(a) of the Dodd-Frank Wall Street Reform and ConsumerProtection Act and this Item is includedin a specified exhibit to the annualreport. Include the followinginformation in an exhibit to the annualreport.

(a) For each coal or other mine of

which the registrant or a subsidiary of the registrant is an operator, identify themine and disclose:

(i) The total number of violations of mandatory health or safety standardsthat could significantly andsubstantially contribute to the cause andeffect of a coal or other mine safety orhealth hazard under section 104 of theFederal Mine Safety and Health Act of 1977 (30 U.S.C. 814) for which theoperator received a citation from theMine Safety and Health Administration.





(ii) The total number of orders issuedunder section 104(b) of such Act (30U.S.C. 814(b)).

(iii) The total number of citations andorders for unwarrantable failure of themine operator to comply withmandatory health or safety standardsunder section 104(d) of such Act (30U.S.C. 814(d)).



(vi) The total dollar value of proposedassessments from the Mine Safety andHealth Administration under such Act(30 U.S.C. 801 et seq.).

Instruction to Item 16H(a)(vi):Registrants must provide the total dollarvalue of assessments proposed byMSHA relating to any type of violationduring the period covered by the report,

regardless of whether the registrant haschallenged or appealed the assessment.(vii) The total number of mining-

related fatalities.Instruction to Item 16H(a)(vii):

Registrants must report all fatalitiesoccurring at a coal or other mine duringthe period covered by the report unlessthe fatality has been determined byMSHA to be unrelated to miningactivity.

(b) A list of coal or other mines, of which the registrant or a subsidiary of the registrant is an operator, that receivewritten notice from the Mine Safety andHealth Administration of:

(i) A pattern of violations of mandatory health or safety standardsthat are of such nature as could havesignificantly and substantiallycontributed to the cause and effect of coal or other mine health or safetyhazards under section 104(e) of suchAct (30 U.S.C. 814(e)); or

(ii) the potential to have such apattern.

(c) Any pending legal action beforethe Federal Mine Safety and HealthReview Commission involving such coalor other mine.

Instructions to Item 16H(c): Theregistrant must report the total numberof legal actions that were pending beforethe Federal Mine Safety and HealthReview Commission as of the last day of the time period covered by the report,as well as the aggregate number of legalactions instituted and the aggregatenumber of legal actions resolved duringthe reporting period. With respect to thetotal number of legal actions that werepending before the Federal Mine Safetyand Health Review Commission as of the last day of the time period covered

by the report, the registrant must also

report the number of such legal actionsthat are (a) contests of citations andorders referenced in Subpart B of 29CFR Part 2700; (b) contests of proposedpenalties referenced in Subpart C of 29CFR Part 2700; (c) complaints forcompensation referenced in Subpart Dof 29 CFR Part 2700; (d) complaints of discharge, discrimination or

interference referenced in Subpart E of 29 CFR Part 2700; (e) applications fortemporary relief referenced in Subpart Fof 29 CFR Part 2700; and (f) appeals of judges’ decisions or orders to theFederal Mine Safety and Health ReviewCommission referenced in Subpart H of 29 CFR Part 2700.

* * * * *

Instructions to Item 16H

1. Item 16H only applies to annualreports, and not to registrationstatements on Form 20–F.

2. The exhibit described in this Item

must meet the requirements underInstruction 19 as to Exhibits of thisForm.

3. For purposes of this Item:a. The term coal or other mine means

a coal or other mine, as defined insection 3 of the Federal Mine Safety andHealth Act of 1977 (30 U.S.C. 802), thatis subject to the provisions of such Act(30 U.S.C. 801 et seq.).

b. The term operator has the meaninggiven the term in section 3 of theFederal Mine Safety and Health Act of 1977 (30 U.S.C. 802).

c. The term subsidiary has themeaning given the term in Exchange ActRule 12b–2 (17 CFR 240.12b–2).* * * * *

INSTRUCTIONS AS TO EXHIBITS

* * * * *16. The mine safety disclosure

required by Item 16H.A registrant that is the operator, or

that has a subsidiary that is an operator,of a coal or other mine must provide theinformation specified in Item 16H in anexhibit to its annual report on Form 20–F.

17 through 99 [Reserved]

* * * * *

■ 8. Amend Form 40–F (referenced in§ 249.240f) by adding Paragraph (16) toGeneral Instruction B to read as follows:

* * * * *(16) Mine safety disclosure. If the

registrant is the operator, or has asubsidiary that is an operator, of a coalor other mine, include the informationset forth below for the time periodcovered by the annual report. In anappropriately captioned section of theannual report, provide a statement thatthe information concerning mine safety

violations or other regulatory mattersrequired by Section 1503(a) of the Dodd-Frank Wall Street Reform and ConsumerProtection Act and this Item is includedin a specified exhibit to the annualreport. Include the followinginformation in an exhibit to the annualreport.

(a) For each coal or other mine of

which the registrant or a subsidiary of the registrant is an operator, identify themine and disclose:

(i) The total number of violations of mandatory health or safety standardsthat could significantly andsubstantially contribute to the cause andeffect of a coal or other mine safety orhealth hazard under section 104 of theFederal Mine Safety and Health Act of 1977 (30 U.S.C. 814) for which theoperator received a citation from theMine Safety and Health Administration.

(ii) The total number of orders issuedunder section 104(b) of such Act (30

U.S.C. 814(b)).(iii) The total number of citations and

orders for unwarrantable failure of themine operator to comply withmandatory health or safety standardsunder section 104(d) of such Act (30U.S.C. 814(d)).



(vi) The total dollar value of proposedassessments from the Mine Safety and

Health Administration under such Act(30 U.S.C. 801 et seq.).Instruction to paragraph (16)(a)(vi):

Registrants must provide the total dollarvalue of assessments proposed byMSHA relating to any type of violationduring the period covered by the report,regardless of whether the registrant haschallenged or appealed the assessment.

(vii) The total number of mining-related fatalities.

Instruction to paragraph (16)(a)(vii):Registrants must report all fatalitiesoccurring at a coal or other mine duringthe period covered by the report unlessthe fatality has been determined byMSHA to be unrelated to miningactivity.

(b) A list of coal or other mines, of which the registrant or a subsidiary of the registrant is an operator, that receivewritten notice from the Mine Safety andHealth Administration of:

(i) A pattern of violations of mandatory health or safety standardsthat are of such nature as could havesignificantly and substantiallycontributed to the cause and effect of coal or other mine health or safety





hazards under section 104(e) of suchAct (30 U.S.C. 814(e)); or

(ii) the potential to have such apattern.

(c) Any pending legal action beforethe Federal Mine Safety and HealthReview Commission involving such coalor other mine.

Instruction to paragraph (16)(c): The

registrant must report the total numberof legal actions that were pending beforethe Federal Mine Safety and HealthReview Commission as of the last day of the time period covered by the report,as well as the aggregate number of legalactions instituted and the aggregatenumber of legal actions resolved duringthe reporting period. With respect to thetotal number of legal actions that werepending before the Federal Mine Safetyand Health Review Commission as of the last day of the time period covered

by the report, the registrant must alsoreport the number of such legal actionsthat are (a) contests of citations andorders referenced in Subpart B of 29CFR part 2700; (b) contests of proposedpenalties referenced in Subpart C of 29CFR part 2700; (c) complaints forcompensation referenced in Subpart Dof 29 CFR part 2700; (d) complaints of discharge, discrimination orinterference referenced in Subpart E of 29 CFR part 2700; (e) applications fortemporary relief referenced in Subpart Fof 29 CFR part 2700; and (f) appeals of judges’ decisions or orders to theFederal Mine Safety and Health ReviewCommission referenced in Subpart H of 29 CFR part 2700.

* * * * *Notes to Paragraph (16) of General

Instruction B:For purposes of this Item:1. The term coal or other mine means

a coal or other mine, as defined insection 3 of the Federal Mine Safety andHealth Act of 1977 (30 U.S.C. 802), thatis subject to the provisions of such Act(30 U.S.C. 801 et seq.).

2. The term operator has the meaninggiven the term in section 3 of theFederal Mine Safety and Health Act of 1977 (30 U.S.C. 802).

3. The term subsidiary has themeaning given the term in Exchange ActRule 12b–2 (17 CFR 240.12b–2).

4. Instruction B(16) only applies toannual reports, and not to registrationstatements on Form 40–F.

* * * * *■ 9. Amend Form 8–K (referenced in§ 249.308) by adding Item 1.04 under

the caption ‘‘Information to Be Includedin the Report’’ after the GeneralInstructions to read as follows:

Note: The text of Form 8–K does not, andthis amendment will not, appear in the Codeof Federal Regulations.

Form 8–K

* * * * *General Instructions

* * * * *

Information To Be Included in theReport

* * * * *

Item 1.04 Mine Safety—Reporting ofShutdowns and Patterns of Violations.

(a) If the registrant or a subsidiary of the registrant has received, with respectto a coal or other mine of which theregistrant or a subsidiary of theregistrant is an operator

•

an imminent danger order issuedunder section 107(a) of the Federal MineSafety and Health Act of 1977 (30 U.S.C.817(a));

• a written notice from the MineSafety and Health Administration thatthe coal or other mine has a pattern of violations of mandatory health or safetystandards that are of such nature ascould have significantly andsubstantially contributed to the causeand effect of coal or other mine healthor safety hazards under section 104(e) of such Act (30 U.S.C. 814(e)); or

• a written notice from the MineSafety and Health Administration that

the coal or other mine has the potentialto have such a pattern,

disclose the following information:(1) The date of receipt by the issuer

or a subsidiary of such order or notice.(2) The category of the order or notice.(3) The name and location of the mine

involved.Instructions to Item 1.04.1. The term ‘‘coal or other mine’’

means a coal or other mine, as definedin section 3 of the Federal Mine Safetyand Health Act of 1977 (30 U.S.C. 802),that is subject to the provisions of suchAct (30 U.S.C. 801 et seq.).

2. The term ‘‘operator’’ has themeaning given the term in section 3 of the Federal Mine Safety and Health Actof 1977 (30 U.S.C. 802).

* * * * *■ 10. Amend Form 10–Q (referenced in§ 249.308a) by revising GeneralInstruction H.2.b to delete the reference

to Item 4, Submission of Matters to aVote of Security Holders, and addingItem 4 in Part II to read as follows:

Note: The text of Form 10–Q does not, andthis amendment will not, appear in the Codeof Federal Regulations.

FORM 10–Q* * * * *

PART II

* * * * *

Item 4. Mine Safety Disclosures * * *

If applicable, provide a statement thatthe information concerning mine safetyviolations or other regulatory mattersrequired by Section 1503(a) of the Dodd-Frank Wall Street Reform and ConsumerProtection Act and Item 104 of Regulation S–K (17 CFR 229.104) isincluded in exhibit 95 to the quarterly

report.* * * * *

■ 11. Amend Form 10–K (referenced in§ 249.310) by revising GeneralInstructions I(2)(c) and J(1)(e) to deletethe references to Item 4, Submission of Matters to a Vote of Security Holders,and adding Item 4 in Part I to read asfollows:

Note: The text of Form 10–K does not, andthis amendment will not, appear in the Codeof Federal Regulations.

FORM 10–K

* * * * *PART I

* * * * *

Item 4. Mine Safety Disclosures * * *

If applicable, provide a statement thatthe information concerning mine safetyviolations or other regulatory mattersrequired by Section 1503(a) of the Dodd-Frank Wall Street Reform and ConsumerProtection Act and Item 104 of Regulation S–K (17 CFR 229.104) isincluded in exhibit 95 to the annualreport.

* * * * *By the Commission.

Dated: December 21, 2011.

Kevin M. O’Neill,

Deputy Secretary.

[FR Doc. 2011–33148 Filed 12–27–11; 8:45 am]

BILLING CODE 8011–01–P

Documents

Mine Safety Final