
[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Rules and Regulations]
[Pages 81762-81785]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33148]



[[Page 81761]]

Vol. 76

Wednesday,

No. 249

December 28, 2011

Part V





Securities and Exchange Commission





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17 CFR Parts 229, 239 and 249





Mine Safety Disclosure; Final Rule

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

[[Page 81762]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229, 239 and 249

[Release Nos. 33-9286; 34-66019; File No. S7-41-10]
RIN 3235-AK83


Mine Safety Disclosure

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting amendments to our rules to implement Section 
1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. 
Section 1503(a) of the Act requires issuers that are operators, or that 
have a subsidiary that is an operator, of a coal or other mine to 
disclose in their periodic reports filed with the Commission 
information regarding specified health and safety violations, orders 
and citations, related assessments and legal actions, and mining-
related fatalities. Section 1503(b) of the Act mandates the filing of a 
Form 8-K disclosing the receipt of certain orders and notices from the 
Mine Safety and Health Administration.

DATES: Effective Date: January 27, 2012.

FOR FURTHER INFORMATION CONTACT: Jennifer Zepralka, Senior Special 
Counsel, or Jennifer Riegel, Special Counsel, Division of Corporation 
Finance at (202) 551-3300, at the Securities and Exchange Commission, 
100 F Street NE., Washington, DC 20549.

SUPPLEMENTARY INFORMATION: We are adding 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-F\6\ and 40-F\7\ under the Securities 
Exchange Act of 1934 (``Exchange Act'').\8\ In addition, we are 
amending General Instruction I.A.3(b) of Form S-3\9\ under the 
Securities Act of 1933 (``Securities Act'').\10\
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    \1\ 17 CFR 229.10 et seq.
    \2\ 17 CFR 229.601.
    \3\ 17 CFR 249.308.
    \4\ 17 CFR 249.308a.
    \5\ 17 CFR 249.310.
    \6\ 17 CFR 249.220f.
    \7\ 17 CFR 249.240f.
    \8\ 15 U.S.C. 78a et seq.
    \9\ 17 CFR 239.13.
    \10\ 15 U.S.C. 77a et seq.
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I. Background and Summary

    On December 15, 2010, we proposed amendments to our rules and forms 
relating to mine safety disclosure.\11\ We proposed these rules to 
implement Section 1503 of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act (the ``Act'').\12\ Section 1503(a) of the Act 
requires issuers that are required to file reports with the Commission 
pursuant to Section 13(a) or 15(d) of the Exchange Act and that are 
operators, or that have a subsidiary that is an operator, of a coal or 
other mine to disclose specified information about mine health and 
safety in their periodic reports filed with the Commission.\13\ Section 
1503(b) of the Act requires each issuer that is an operator, or that 
has a subsidiary that is an operator, of a coal or other mine to file a 
current report on Form 8-K with the Commission reporting receipt of 
certain shutdown orders and notices of patterns or potential patterns 
of violations.\14\
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    \11\ See Release No. 33-9164, 34-63548 (December 15, 2010) [75 
FR 80374] (the ``Proposing Release'').
    \12\ Public Law 111-203 (July 21, 2010).
    \13\ Section 1503(a) of the Act.
    \14\ Section 1503(b) of the Act.
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    As discussed in the Proposing Release, the disclosure requirements 
set forth in Section 1503 of the Act refer to and are based on the 
safety and health requirements applicable to mines under the Federal 
Mine Safety and Health Act of 1977 (the ``Mine Act''),\15\ which is 
administered by the U.S. Department of Labor's Mine Safety and Health 
Administration (``MSHA''). Under the Mine Act, MSHA is required to 
inspect surface mines at least twice a year and underground mines at 
least four times a year \16\ to determine whether there is compliance 
with health and safety standards or with any citation, order or 
decision issued under the Mine Act and whether an imminent danger 
exists. MSHA also conducts spot inspections \17\ and inspections 
pursuant to miners' complaints.\18\ If violations of safety or health 
standards are found, MSHA inspectors will issue citations or orders to 
the mine operators. Among other activities under the Mine Act, MSHA 
also assesses and collects civil monetary penalties for violations of 
mine safety and health standards.\19\ MSHA maintains a data retrieval 
system on its Web site that allows users to examine, on a mine-by-mine 
basis, data on inspections, violations, and accidents, as well as 
information about dust samplings, at all mines in the United 
States.\20\
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    \15\ 30 U.S.C. 801 et seq.
    \16\ 30 U.S.C. 813(a). Seasonal or intermittent operations are 
inspected less frequently. See Mine Safety and Health 
Administration, Program Policy Manual, Volume I, Section 103, 
available at http://www.msha.gov/REGS/COMPLIAN/PPM/PMMAINTC.HTM.
    \17\ 30 U.S.C. 813(i).
    \18\ 30 U.S.C. 813(g).
    \19\ 30 U.S.C. 820. See also ``MSHA's Statutory Functions'' 
available at http://www.msha.gov/MSHAINFO/MSHAINF1.HTM.
    \20\ See http://www.msha.gov/DRS/DRSHOME.HTM.
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    In addition, an independent adjudicative agency, the Federal Mine 
Safety and Health Review Commission (the ``FMSHRC''), provides 
administrative trial and appellate review of legal disputes arising 
under the Mine Act.\21\ Most cases deal with civil penalties proposed 
by MSHA to be assessed against mine operators and address whether the 
alleged safety and health violations occurred, as well as the 
appropriateness of proposed penalties. Other types of cases include 
miners' complaints of safety- or health-related discrimination and 
miners' applications for compensation after a mine has been idled by a 
closure order.\22\ The FMSHRC's administrative law judges decide cases 
at the trial level and the five-member FMSHRC provides appellate 
review. Appeals from the FMSHRC's decisions are to the U.S. courts of 
appeals.\23\
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    \21\ 30 U.S.C. 815(d).
    \22\ See ``About FMSHRC'' on http://www.fmshrc.gov/fmshrc.html.
    \23\ 30 U.S.C. 816.
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    The disclosure requirements set forth in Section 1503 of the Act 
are currently in effect.\24\ Issuers have been providing disclosure in 
their periodic and current reports filed with the Commission since the 
effective date of Section 1503. However, the Act states that the 
Commission is ``authorized to issue such rules or regulations as are 
necessary or appropriate for the protection of investors and to carry 
out the purposes of [Section 1503].'' \25\ In order to facilitate 
consistent compliance with the Act's requirements by reporting 
companies, we proposed rule amendments that would implement the Act's 
requirements by codifying them into our disclosure rules and specifying 
their scope and application. We also proposed to require a limited 
amount of additional disclosure to provide context for certain items 
required by the Act.
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    \24\ See Section 1503(f) of the Act.
    \25\ Section 1503(d)(2) of the Act.
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    We received over 30 comment letters in response to the proposed 
amendments, and one letter, received prior to our proposal, relating to 
Section 1503 of the Act.\26\ These letters came

[[Page 81763]]

from investors and issuers, as well as professional and trade 
associations, trade unions, law firms and other interested parties. In 
general, the commentators supported the proposed amendments, although 
several commentators opposed some of the proposed amendments that would 
require additional disclosure to provide context to the information 
required by the Act. Many commentators suggested modifications or 
alternatives to the proposals.\27\ As discussed in detail below, we 
have taken into consideration the comments received on the proposed 
amendments, as well as the staff's experience with the disclosure 
already being provided under Section 1503, and are adopting several 
amendments to our rules. In general, we have decided not to adopt the 
proposals that would have expanded the required disclosure beyond that 
required by Section 1503 since we are persuaded by comments asserting 
that the added burden of these proposed requirements likely would have 
outweighed the potential incremental benefits of the additional 
disclosure. The final rules we adopt today adhere closely to Section 
1503 of the Act, and reflect changes made from the proposals in 
response to comments.
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    \26\ The public comments we received on the Proposing Release 
are available on our Web site at http://www.sec.gov/comments/s7-41-10/s74110.shtml. In addition, to facilitate public input on the Act, 
the Commission provided a series of email links, organized by topic, 
on its Web site at http://www.sec.gov/spotlight/regreformcomments.shtml. The letter we received prior to publication 
of the Proposing Release on Section 1503 of the Act is available on 
our Web site at http://www.sec.gov/comments/df-title-xv/specialized-disclosures/specialized-disclosures.shtml.
    \27\ We received three comment letters noting Executive Order 
No. 13563 (Jan. 18, 2011), which instructs federal agencies to, 
among other things, minimize burdens on the private sector and 
simplify and harmonize their regulations. See letters from 
Industrial Minerals Association--North America (``IMA-NA''), 
National Stone, Sand, Gravel Association (``NSSGA'') and Wyoming 
Mining Association (``WMA''). As these commentators acknowledge, the 
Executive Order does not apply to the Commission. (We note that, 
subsequent to the submission of these comment letters, the President 
issued a comparable Executive Order, No. 13579 (July 11, 2011), 
directed to independent regulatory agencies.) However, these 
commentators assert that it would be within the spirit of the 
Executive Order if the final rules implemented Section 1503 by 
simply reiterating the statutory provision in the regulatory text of 
17 CFR Parts 229, 239 and 249. While we are not adopting in its 
entirety the approach recommended by these commentators, as 
discussed in more detail in this release, we are modifying some of 
the disclosure requirements from the proposals so that the final 
rules adhere closely to the statutory text.
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    We are adopting amendments to Form 10-K, Form 10-Q, Form 20-F and 
Form 40-F to require the disclosure required by Section 1503(a) of the 
Act. We are adopting new Item 104 of Regulation S-K, which sets forth 
the disclosure requirements for Forms 10-Q and 10-K, and amending Item 
601 of Regulation S-K to add a new exhibit to Form 10-K and Form 10-Q 
for provision of this information. We are also adopting amendments to 
Forms 20-F and 40-F to include the same disclosure requirements as 
those adopted for issuers that are not foreign private issuers. In 
addition, we are adding a new item to Form 8-K to implement the 
requirement imposed by Section 1503(b) of the Act, and amending Form S-
3 to add the new Form 8-K item to the list of Form 8-K items the 
untimely filing of which will not result in loss of Form S-3 
eligibility.

II. Discussion Of The Amendments

A. Required Disclosure in Periodic Reports

1. Scope
a. Proposed Amendments
    Section 1503(a) of the Act mandates that specified disclosure be 
provided in each periodic report filed with the Commission by every 
issuer that is required to file reports with the Commission 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 other 
mine.'' The Act specifies that the term ``operator'' has the meaning 
given such term in Section 3 of the Mine Act.\28\ The Act also 
specifies that the term ``coal or other mine'' means a coal or other 
mine as defined in Section 3 of the Mine Act,\29\ that is subject to 
the provisions of the Mine Act.\30\
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    \28\ Section 1503(e)(3) of the Act. Section 3(d) of the Mine Act 
provides that an ``operator'' means any owner, lessee, or other 
person who operates, controls, or supervises a coal or other mine or 
any independent contractor performing services or construction at 
such mine. 30 U.S.C. 802.
    \29\ Section 3(h) of the Mine Act states that ``coal or other 
mine'' means an area of land from which minerals are extracted in 
nonliquid form or, if in liquid form, are extracted with workers 
underground, private ways and roads appurtenant to such area, and 
lands, excavations, underground passageways, shafts, slopes, tunnels 
and workings, structures, facilities, equipment, machines, tools, or 
other property including impoundments, retention dams, and tailings 
ponds, on the surface or underground, used in, or to be used in, or 
resulting from, the work of extracting such minerals from their 
natural deposits in nonliquid form, or if in liquid form, with 
workers underground, or used in, or to be used in, the milling of 
such minerals, or the work of preparing coal or other minerals, and 
includes custom coal preparation facilities. In making a 
determination of what constitutes mineral milling for purposes of 
this Act, the Secretary shall give due consideration to the 
convenience of administration resulting from the delegation to one 
Assistant Secretary of all authority with respect to the health and 
safety of miners employed at one physical establishment; for 
purposes of titles II, III, and IV, ``coal mine'' means an area of 
land and all structures, facilities, machinery tools, equipment, 
shafts, slopes, tunnels, excavations, and other property, real or 
personal, placed upon, under, or above the surface of such land by 
any person, used in, or to be used in, or resulting from, the work 
of extracting in such area bituminous coal, lignite, or anthracite 
from its natural deposits in the earth by any means or method, and 
the work of preparing the coal so extracted, and includes custom 
coal preparation facilities.
    \30\ Section 1503(e)(2) of the Act.
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    We proposed to include references to these definitions in new items 
of Regulation S-K, the instructions to a new item of Form 20-F and the 
notes to a new paragraph of General Instruction B of Form 40-F. The 
proposed rules did not provide for any other defined terms, but the 
Proposing Release noted our view that the definition of ``subsidiary'' 
in Item 1-02(x) of Regulation S-X \31\ would apply to this disclosure 
in the absence of another definition.
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    \31\ Under Item 1-02(x) of Regulation S-X, a ``subsidiary'' of a 
specified person is ``an affiliate controlled by such person 
directly, or indirectly through one or more intermediaries.'' This 
definition is identical to the definition of ``subsidiary'' in Rule 
12b-2 under the Exchange Act and Rule 405 under the Securities Act.
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    The Proposing Release also explained that, because the Act's 
definition of ``coal or other mine'' is limited to those mines that are 
subject to the provisions of the Mine Act, and the Mine Act applies 
only to mines located in the United States,\32\ the proposed mine 
safety disclosure would be required only for coal or other mines (as 
defined in the Mine Act) located in the United States. Under the 
proposed rules, this disclosure would be made for each distinct mine 
covered by the Mine Act, and issuers would not be permitted to group 
mines by project or geographic region.
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    \32\ The 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 miner in 
such mine * * *'' 30 U.S.C. 803. ```Commerce' means trade, traffic, 
commerce, transportation, or communication among the several States, 
or between a place in a State and any place outside thereof, or 
within the District of Columbia or a possession of the United 
States, or between points in the same State but through a point 
outside thereof.'' 30 U.S.C. 802(b). ```State' includes a State of 
the United States, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust 
Territory of the Pacific Islands.'' 30 U.S.C. 802(c).
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    The proposed rules would include smaller reporting companies and 
foreign private issuers \33\ within the scope of the rules implementing 
Section 1503(a) of the Act.
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    \33\ See the definition of ``smaller reporting company'' in 17 
CFR 240.12b-2 and the definition of ``foreign private issuer'' in 17 
CFR 240.3b-4.
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    The Proposing Release requested comment on whether the special 
provisions of Form 10-K and Form 10-Q permitting the omission of 
certain information by wholly owned subsidiaries and asset-backed 
issuers should apply to the proposed mine safety disclosure.
b. Comments on the Proposed Amendments
    Many commentators supported the proposal to apply the disclosure 
requirements of Section 1503 only to

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mines that are subject to the Mine Act, and not to mines located 
outside the United States.\34\ These commentators generally agreed with 
our view that references to the Mine Act in Section 1503 indicate that 
the statutory disclosures are required only for coal or other mines 
covered by the Mine Act. One commentator noted its belief that it would 
be impractical to apply the disclosure provisions to mines in 
jurisdictions other than the United States because there is no common 
mine safety regulatory approach across jurisdictions, and warned that 
an attempt to do so would yield inconsistent and confusing standards in 
terms of the application of the standard both between companies and 
between operating locations.\35\ Another commentator noted that, to the 
extent that mine safety information relating to an issuer's non-U.S. 
mines is material, disclosure would be required under the Commission's 
existing disclosure requirements.\36\
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    \34\ See letters from AngloGold Ashanti Limited (``AngloGold''), 
Barrick Gold Corporation (``Barrick Gold''), Cleary Gottlieb Steen & 
Hamilton LLP (``Cleary''), Davis Graham & Stubbs LLP (``DGS Law''), 
National Mining Association (``NMA''), New York State Bar 
Association (``NYSBA'') and Rio Tinto plc (``Rio Tinto'').
    \35\ See letter from Rio Tinto.
    \36\ See letter from AngloGold.
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    Other commentators, however, supported expanding the disclosure 
requirement to cover mines in all jurisdictions, noting their belief 
that the health and safety risks related to mines in all jurisdictions 
are as material to investors as health and safety concerns for U.S. 
mines,\37\ and asserting that the data required to be disclosed under 
the Mine Act and Section 1503(a) is as readily available for an 
issuer's non-U.S. mines as it is for U.S. mines.\38\
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    \37\ See e.g, letters from California Public Employees' 
Retirement System (``CalPERS''), EARTHWORKS' No Dirty Gold Campaign 
(``EARTHWORKS''), Social Investment Forum (``SIF'') and Trillium 
Asset Management Corporation (``Trillium'').
    \38\ See letters from SIF and Trillium.
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    Several commentators supported the proposed rule that would require 
disclosure to be provided for each mine for which the issuer or a 
subsidiary of the issuer is an operator, on a mine-by-mine basis.\39\ 
One commentator stated its view that the statutory language should be 
interpreted to be consistent with a group of operations considered a 
``mine'' for purposes of Mine Act reporting.\40\ Other commentators 
similarly noted that this is how operators report information to MSHA, 
so issuers would be able to prepare the required disclosure on a mine-
by-mine basis without a significant administrative burden.\41\
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    \39\ See 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'').
    \40\ See letter from Barrick Gold.
    \41\ See letters from AFL-CIO, Barrick Gold and UMWA.
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    Conversely, three commentators requested that the final rules 
specify that issuers may group all integrated facilities of a mine site 
when complying with the disclosure requirements of the Act, 
notwithstanding the fact that some of those facilities may have been 
issued separate mine identification numbers by MSHA.\42\ These 
commentators claimed that doing so could help promote investor 
understanding because the health and safety information would then be 
reported in a manner consistent with the company's reporting of 
operating and financial data in their periodic reports.\43\
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    \42\ See letters from Freeport-McMoRan Copper and Gold Inc. 
(``Freeport-McMoRan''), NMA and Rio Tinto.
    \43\ See letters from Freeport-McMoRan and NMA.
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    We received a comment requesting that we clarify that only those 
orders and citations issued to mines with an MSHA identification number 
are to be included in the disclosure.\44\ Similarly, a few commentators 
requested clarification that the final rules require disclosure only of 
orders and citations issued directly to mine operator issuers and their 
subsidiaries, and not to contractors or other entities operating at the 
mining site, who would have their own MSHA identification numbers.\45\
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    \44\ See letter from NMA.
    \45\ See letters from Barrick Gold and DGS Law.
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    Several commentators agreed that it is appropriate for the 
definition of the term ``subsidiary'' for purposes of Section 1503 to 
be consistent with the meaning of the term as defined under Item 1-
02(x) of Regulation S-X, and supported our proposal not to adopt a 
different definition of ``subsidiary.'' \46\ One of these commentators 
suggested that this definition should be specified in the new 
rules.\47\ However, one commentator stated that the definition of 
subsidiary and entity under the control of the corporation must be 
comprehensive and should include unconsolidated equity investees and 
joint ventures.\48\
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    \46\ See letters from AngloGold, Cleary, Estess, NMA, Rio Tinto, 
SIF and Trillium.
    \47\ See letter from Estess.
    \48\ See letter from EARTHWORKS.
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    Commentators generally concurred with our proposal that smaller 
reporting companies should not be exempted from the disclosure 
requirements, generally noting that Section 1503 of the Act does not 
contemplate an exception from disclosure for smaller reporting 
companies.\49\ Similarly, commentators generally agreed with the 
proposal that foreign private issuers should not be exempted from the 
disclosure requirement.\50\ Many commentators expressed the view that 
Section 1503 of the Act does not contemplate any exception from 
disclosure for foreign private issuers,\51\ while others asserted that 
foreign private issuers are as likely to have risks associated with 
worker safety issues as domestic reporting companies and therefore 
should be required to report the same information.\52\
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    \49\ See e.g, letters from AFL-CIO, CalPERS, California State 
Teachers' Retirement System (``CalSTRS''), EARTHWORKS, NMA, Rio 
Tinto, SIF, Trillium and UMWA. One commentator agreed that smaller 
reporting companies should be required to provide the disclosure, 
but noted concerns about the costs of compliance for smaller 
reporting companies and suggested the Commission consider a simpler 
disclosure system for such companies. See letter from Estess.
    \50\ See letters from CalPERS, CalSTRS, DGS Law, EARTHWORKS, 
NMA, Rio Tinto, SIF and Trillium.
    \51\ See letters from DGS Law, NMA and Rio Tinto.
    \52\ See letters from SIF and Trillium.
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    Commentators had differing views on whether either wholly owned 
subsidiaries or asset-backed issuers should be permitted to omit the 
proposed mine safety disclosure in accordance with the special 
provisions in General Instruction I to Form 10-K and General 
Instruction H to Form 10-Q. Two commentators argued that wholly owned 
subsidiaries should be permitted to omit the disclosure if the 
information is disclosed by the wholly owned subsidiary's parent 
entity.\53\ Other commentators stated their view that the special 
provisions should not apply.\54\
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    \53\ See letters from NMA and NYSBA.
    \54\ See letters from Estess and EARTHWORKS (neither wholly 
owned subsidiaries nor asset-backed issuers should be permitted to 
omit the information); SIF and Trillium (no reason for exemptions 
for asset-backed issuers); and AFL-CIO and UMWA (information of 
wholly owned subsidiaries should not be excluded).
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c. Final Rule
    We are adopting the final rules as proposed, with a clarifying 
change to the instructions regarding the definition of the term 
``subsidiary.'' The final rules apply only to mines in the United 
States. Although we have considered the views of commentators that 
request application of the disclosure requirement to non-U.S. mines, we 
continue to believe that the statutory language referencing the Mine 
Act clearly indicates that the Section 1503 disclosures are required 
only for coal or other mines covered by the Mine Act. We also agree 
with commentators who

[[Page 81765]]

expressed concerns that application of the Act's disclosure requirement 
to non-U.S. mines would be difficult to implement and could result in 
different disclosure from jurisdiction to jurisdiction, which would not 
be directly comparable. Although the final rules are limited to 
implementing the requirements of the Act and, therefore, do not extend 
to foreign mines, we reiterate, as noted in the Proposing Release, that 
to the extent mine safety issues are material, under our current rules 
disclosure could be required pursuant to the following items of 
Regulation S-K: Item 303 (Management's Discussion and Analysis of 
Financial Condition and Results of Operations), Item 503(c) (Risk 
Factors), Item 101 (Description of Business) or Item 103 (Legal 
Proceedings).
    The final rules require disclosure on a mine-by-mine basis. We 
continue to believe that the disclosure of the information on a mine-
by-mine basis accords with the plain language of the Act. We understand 
the concern raised by commentators about groupings of mines that may 
more logically be reported together but for having separate MSHA mine 
identification numbers. However, we note that MSHA's data retrieval 
system provides information on a mine-by-mine basis using the MSHA mine 
identification number assigned to each mine or facility. MSHA has a 
detailed process for assigning identification numbers.\55\ We believe 
it is more appropriate to require disclosure for each specific 
identified mine, consistent with MSHA reporting, as well as with 
Section 1503.
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    \55\ See MSHA Program Policy Manual Volume III. 41-1. For 
example, for coal mines, preparation plants that receive coal from 
only one underground or surface mine, and are located on the same 
property as that mine, share the mine's identification number, but 
preparation plants that share mine property with a surface or 
underground mine, but process coal from other mines, are to be given 
separate identification numbers.
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    We note that orders and citations issued to independent contractors 
(who are not subsidiaries of the issuer) who are working at the 
issuer's mine site would not need to be reported by the issuer. This is 
consistent with the approach discussed above, under which the reporting 
will be for each mine that has an MSHA identification number, and is 
consistent with the Act's use of terms defined in the Mine Act. The 
definition of ``operator'' in the Mine Act includes independent 
contractors. Therefore, we note that independent contractors that are 
required to file reports with the Commission pursuant to Section 13(a) 
or 15(d) of the Exchange Act and are operators, or have a subsidiary 
that is an operator, of a coal or other mine would need to include the 
disclosure required by Section 1503 and our new rules in their reports. 
We recognize that the result of this approach could be some orders or 
citations will go unreported if the independent contractor is not a 
reporting company, but believe this approach is consistent with the way 
MSHA reports orders and citations, as well as with Section 1503. We 
note that if individual orders or citations, or a pattern of 
violations, at mines owned by an issuer but operated by an independent 
contractor are material to the issuer, disclosure could be required 
under our existing rules pursuant to the applicable items of Regulation 
S-K.
    The final rules will include an instruction noting that 
``subsidiary'' is as defined in Exchange Act Rule 12b-2. This 
definition is identical to the definition of ``subsidiary'' found in 
Securities Act Rule 405 and Regulation S-X Item 1-02(x), which apply to 
other elements of issuers' periodic disclosure. As stated in Rule 12b-
2, a subsidiary of a specified person is ``an affiliate controlled by 
such person directly, or indirectly through one or more 
intermediaries.'' Issuers are accustomed to applying this definition in 
connection with their periodic reporting and we do not see a benefit to 
adding to issuers' compliance burden by specifying a different 
definition of ``subsidiary'' in the context of mine safety disclosure. 
We considered the suggestion raised by a commentator that 
``subsidiary'' should be defined to specifically encompass 
unconsolidated equity investees and joint ventures. However, we believe 
that such an approach is inconsistent with the plain meaning of the 
term ``subsidiary.''
    The final rules do not provide special treatment to smaller 
reporting companies or foreign private issuers. We continue to believe 
their inclusion is consistent with the plain language of Section 
1503(a), which applies broadly to issuers that are required to file 
reports under Section 13(a) or 15(d) of the Exchange Act. In addition, 
we note that these issuers have been complying with the Section 1503 
disclosure requirements since the effective date of that provision.
    The final rules do not extend the special provisions of Form 10-K 
and Form 10-Q that permit the omission of certain information by 
wholly-owned subsidiaries and asset-backed issuers. Many commentators 
stated, and we agree, that such treatment is not necessary for the mine 
safety disclosure requirement. Section 1503 of the Act applies broadly 
to ``each issuer that is required to file reports pursuant to'' the 
Exchange Act, and does not appear to contemplate special treatment for 
particular types of issuers. We are making technical amendments to 
General Instructions I and J to Form 10-K and General Instruction H to 
Form 10-Q to delete the references to ``Item 4, Submission of Matters 
to a Vote of Security Holders.''
2. Location of Disclosure
    The Act states that companies must include the disclosure in their 
periodic reports required pursuant to Section 13(a) or 15(d) of the 
Exchange Act.
a. Proposed Amendments
    In order to implement the disclosure requirement set forth in 
Section 1503(a) of the Act, we proposed to add new Item 4 to Part II of 
Form 10-Q and new Item 4(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 Form 20-F; and new Paragraph (18) of General 
Instruction B of Form 40-F. As proposed, these items would be identical 
in substance and entitled, ``Mine Safety Disclosure.'' The proposed 
items would require issuers to provide in their periodic reports and in 
exhibits to their periodic reports the information listed in Section 
1503(a) of the Act and certain additional disclosure designed to 
provide context for such information.
    The proposed rules would require issuers that have matters to 
report in accordance with Section 1503(a) to include brief disclosure 
in the body of the periodic report noting that they have mine safety 
violations or other regulatory matters to report in accordance with 
Section 1503(a), and that the required information is included in an 
exhibit to the filing. The exhibit would include the detailed 
disclosure about specific violations and regulatory matters required by 
Section 1503(a) as implemented in the proposed rules. The Proposing 
Release noted our view that this approach would facilitate access to 
the information about detailed mine safety matters without 
overburdening the traditional Exchange Act reports with extensive new 
disclosures.
    We did not propose any particular presentation requirements for the 
new disclosure, although the Proposing Release encouraged issuers to 
use tabular presentations whenever possible, if to do so would 
facilitate investor understanding.

[[Page 81766]]

b. Comments on the Proposed Amendments
    A broad spectrum of commentators supported the Commission's 
proposal to require the information to be presented in an exhibit to 
the periodic report, with brief disclosure in the body of the report 
noting that the issuer has mine safety matters to report and referring 
to the required exhibit.\56\ We did not receive any comments opposing 
this approach, although two commentators requested that certain 
information, such as all fatal accidents or receipt of notice that a 
mine has a pattern of violations, be required to be included in the 
body of the periodic report so that investors would be made aware of 
significant events without looking to the exhibit.\57\
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    \56\ See letters from AFL-CIO, AngloGold, Chevron Corporation 
(``Chevron''), Cleary, Freeport-McMoRan, Estess, NMA, NYSBA, Rio 
Tinto and UMWA.
    \57\ See letters from AFL-CIO and UMWA.
---------------------------------------------------------------------------

    The Proposing Release requested comment on whether it would be 
preferable, and consistent with Section 1503, to provide for annual 
reporting only, instead of requiring the disclosure in every periodic 
report. Although a few commentators stated a belief that annual 
reporting would be preferable to quarterly reporting,\58\ generally the 
commentators agreed that Section 1503(a) requires the mine safety 
disclosures to be included in each periodic report filed with the 
Commission.\59\
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    \58\ See, e.g., letters from Chevron and NSSGA. One commentator 
suggested that the Form 10-Q reporting requirement could be met by 
allowing issuers to incorporate by reference the required 
information from MSHA's data retrieval system and provide specific 
instructions as to how to access the information. See letter from 
Freeport-McMoRan.
    \59\ See, e.g., letters from Chevron, Estess and NMA.
---------------------------------------------------------------------------

    We requested comment on whether the information required by Section 
1503 should be included in registration statements, in addition to the 
periodic reporting requirement. Many commentators stated that the 
disclosure should not be included in registration statements, noting 
that Section 1503 specifies only that the disclosure is required in 
periodic reports.\60\ However, two commentators stated their view that 
the disclosure should be required in registration statements.\61\ On a 
related note, although we did not specifically request comment on the 
topic, we received a small number of comments expressing a view on 
whether the disclosure required under Section 1503(a) and the new rules 
should be filed with the Commission or instead deemed to be furnished, 
not filed.\62\ Commentators who argued for the information to be 
``furnished'' asserted that, because in their view the Section 1503 
disclosure requirements are not aimed at providing investors with 
information material to investment decisions, Exchange Act Section 18 
should not apply, the Section 1503 information should not be 
incorporated into any Securities Act filing, and the officer 
certifications required by Exchange Act Rules 13a-14 and 15d-14 should 
not extend to the Section 1503 disclosures.\63\ However, other 
commentators expressed their view that information about health and 
safety risks related to mines operated by issuers is material to 
investors.\64\
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    \60\ See letters from AngloGold, Cleary, DGS Law, NMA, NYSBA and 
Rio Tinto.
    \61\ See letters from EARTHWORKS and Estess.
    \62\ See letters from EARTHWORKS, SIF and Trillium (filed); and 
Cleary, NYSBA (furnished).
    \63\ See, e.g., letter from NYSBA.
    \64\ See letters from SIF and Trillium.
---------------------------------------------------------------------------

    Some commentators approved of the flexibility of the proposed 
rules, which did not specify any particular presentation requirements 
for the new disclosure and permitted each issuer the flexibility to 
adopt a presentation it believes is appropriate for its disclosure.\65\ 
An equal number of commentators, however, expressed a preference for 
requiring a specific tabular presentation.\66\ One commentator stated 
that a specific tabular presentation would more readily allow an 
investor to compare results from different owners or operators and 
individual mines.\67\ Another commentator requested that we provide an 
example of an acceptable presentation or format, stating that a 
specific tabular presentation format would be helpful to ensure the 
required information is presented in the correct form.\68\
---------------------------------------------------------------------------

    \65\ See letters from AngloGold, Cleary, IMA-NA, NMA and WMA.
    \66\ See letters from Estess, NSSGA, Rio Tinto, SIF and 
Trillium.
    \67\ See letter from Rio Tinto.
    \68\ See letter from Chevron.
---------------------------------------------------------------------------

    Commentators generally were of the view that the Commission should 
not require the information to be provided in an interactive data 
format.\69\ Among the reasons cited for this view was that requiring 
interactive data could make the reporting more complex and add costs to 
the system.\70\ Another commentator noted its view that the purpose of 
the Commission's existing XBRL rules is to facilitate financial 
analysis by investors, and therefore asserted that requiring the 
Section 1503 information, which is non-financial in nature, to be 
submitted in interactive data format would not be consistent with this 
purpose.\71\ A few commentators, however, expressed a preference that 
the disclosure be tagged in XBRL.\72\
---------------------------------------------------------------------------

    \69\ See letters from AngloGold, Chevron, Cleary, DGS Law, 
Estess, NMA, NSSGA and Rio Tinto.
    \70\ See letter from Estess.
    \71\ See letter from AngloGold.
    \72\ See letters from AFL-CIO, SIF, Trillium and UMWA.
---------------------------------------------------------------------------

c. Final Rule
    After considering comments received, we are adopting the final 
rules substantially as proposed, with minor technical changes. We are 
amending Form 10-Q to add new Item 4 to Part II and Form 10-K to add 
new Item 4 to Part I, which would require the information required by 
new Items 104 and 601(b)(95) of Regulation S-K; Form 20-F to add new 
Item 16H; and Form 40-F to add new Paragraph (16) of General 
Instruction B. As discussed in more detail below, the disclosure is 
required to be provided in each periodic report.\73\
---------------------------------------------------------------------------

    \73\ See Section II.A.3 below for a discussion of time periods 
covered.
---------------------------------------------------------------------------

    As proposed, the amendments will require issuers that have matters 
to report in accordance with Section 1503(a) to include brief 
disclosure in Part II of Form 10-Q, Part I of Form 10-K and Forms 20-F 
and 40-F noting that they have mine safety violations or other 
regulatory matters to report in accordance with Section 1503(a), and 
that the required information is included in an exhibit to the filing. 
The exhibit would include the detailed disclosure about specific 
violations and regulatory matters required by Section 1503(a) as 
implemented in our new rules. Many issuers have already implemented 
this approach in their periodic reports that contain the disclosure 
required under Section 1503(a). Consistent with the proposal, the final 
rule does not require disclosure in the body of the periodic report of 
certain information, such as all fatal accidents or receipt of notice 
that a mine has a pattern of violations.\74\ We do not believe it is 
necessary to require this additional disclosure in order to implement 
Section 1503; and we reiterate, as noted in the Proposing Release, that 
in the event that mine safety matters raise concerns that should be 
addressed in other parts of a periodic report, such as risk factors, 
the business description, legal proceedings or management's discussion 
and analysis, inclusion of this new disclosure would

[[Page 81767]]

not obviate the need to discuss mine safety matters in accordance with 
other rules as appropriate.
---------------------------------------------------------------------------

    \74\ We 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 require disclosure on Form 8-K within four business 
days of receipt of the notice, as reflected in the new Form 8-K item 
we are adopting today.
---------------------------------------------------------------------------

    The amended rules, as proposed, do not specify any particular 
presentation requirements for the new disclosure, but we continue to 
encourage issuers to use tabular presentations whenever possible if to 
do so would facilitate investor understanding. Many issuers are 
currently providing the disclosure required by Section 1503(a) in 
tabular format in their periodic reports. We agree with commentators 
who suggested that the Commission's provision of an example of a 
possible tabular presentation may encourage uniformity and 
comparability of disclosures. After considering the comments received 
and examining current disclosure practices, we are including the below 
example of a potential tabular presentation. However, we note that 
issuers are free to present the required information in any 
presentation they believe is appropriate for the disclosure.
[GRAPHIC] [TIFF OMITTED] TR28DE11.008

    The use of footnotes, accompanying narrative disclosure or 
additional tables may also help to clarify information provided, as 
appropriate. For example, issuers choosing to use a tabular 
presentation similar to the one above may provide the additional detail 
described below that our final rules require about types of legal 
actions \75\ in footnotes, accompanying narrative disclosure or an 
additional table.
---------------------------------------------------------------------------

    \75\ See new Item 104(a)(3) of Regulation S-K; Item 16H(c) of 
Form 20-F; Paragraph 16(c) of General Instruction B of Form 40-F; 
and the discussion in Section II.A.4.d(3) below.
---------------------------------------------------------------------------

    We are not adopting a requirement to provide this information in 
interactive data format. Section 1503 does not require the disclosure 
to be submitted in interactive format. After considering the comments 
received, we believe that the added costs of imposing such a 
requirement would likely not be justified by the potential benefits to 
investors of having access to the information in interactive format.
    The final rules require the disclosure in each periodic report 
filed with the Commission, and such disclosure will be considered 
``filed,'' not ``furnished.'' We believe that this approach is 
consistent with the statutory language of Section 1503--which provides 
that an issuer must ``include, [the required disclosure] in each 
periodic report filed with the Commission.'' Therefore, as is the case 
with other disclosure filed as part of a periodic report, Section 18 of 
the Exchange Act will apply and the disclosure is encompassed by the 
Exchange Act Rule 13a-14 and 15d-14 certifications. In addition, if the 
issuer files a Securities Act registration statement (such as Form S-3) 
that incorporates by reference its periodic reports, the disclosure 
included in Exchange Act reports in accordance with the new rules will 
be incorporated by reference.
3. Time Periods Covered
    Section 1503(a) of the Act states that each periodic report must 
include disclosure ``for the time period covered by such report.''
a. Proposed Amendments
    We proposed that each Form 10-Q would be required to include the 
required disclosure for any orders or citations received, penalties 
assessed, legal actions initiated or mining-related fatalities that 
occurred during the quarter covered by the report.\76\ We also proposed 
that each Form 10-K would be required to include disclosure covering 
both the fourth quarter of the issuer's fiscal year and cumulative 
information for the entire fiscal year. For each of Forms 20-F and 40-
F, the disclosure would be required for the issuer's fiscal year.
---------------------------------------------------------------------------

    \76\ As noted in Sections II.A.4.b(1) and II.A.4.d(1) below, we 
also proposed to require disclosure of the total amounts of 
assessments of penalties outstanding as of the last day of the 
quarter and of any developments material to previously reported 
legal actions that occur during the quarter.
---------------------------------------------------------------------------

    In addition, the Proposing Release noted that, based on the 
language of Section 1503(a) of the Act, the proposed rule would not 
allow issuers to exclude information about orders or citations that 
were received during the time period covered by the report but 
subsequently were dismissed or reduced. The proposed rules did not 
prohibit the inclusion of additional information, such as an 
explanation that certain orders or citations were dismissed or reduced.
b. Comments on the Proposed Amendments
    There was support from commentators for the proposal to require an 
annual report on Form 10-K to include disclosures for orders, 
citations, assessments, legal actions and fatalities for the fourth 
quarter and also on an aggregate basis for the whole year.\77\ Some of 
these commentators stated that it is important for investors to learn 
of trends in order to understand material changes in a mine's health 
and safety record, and that requiring the information for both the 
fourth quarter and the whole year would help reveal such trends.\78\ 
However, other commentators expressed concerns about this aspect of the 
proposed rule.\79\ These commentators argued that requiring issuers to 
include both fourth quarter and annual information would be unnecessary 
because to do so would not provide investors with additional 
significant information.\80\ Some of these commentators asserted that 
the disclosure in the Form 10-K should cover only the fiscal year.\81\ 
Others preferred that the disclosure cover only the fourth quarter, 
which would provide the information disclosed on Form 10-K in a 
comparable period to the quarterly report on Form 10-Q.\82\
---------------------------------------------------------------------------

    \77\ See letters from AFL-CIO, EARTHWORKS, Estess, SIF, Trillium 
and UMWA.
    \78\ See letters from AFL-CIO and UMWA.
    \79\ See letters from Chevron, Cleary, DGS Law, Freeport-
McMoRan, and NMA. NYSBA and Rio Tinto.
    \80\ See, e.g., letter from Freeport-McMoRan.
    \81\ See letters from Chevron, Freeport-McMoRan and Rio Tinto.
    \82\ See letters from Cleary, DGS Law, NMA and NYSBA.
---------------------------------------------------------------------------

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

[[Page 81768]]

reduced in severity below the level that triggers disclosure under 
Section 1503(a), the comments were mixed. Many of the commentators 
supported the Commission's proposal that issuers should not be allowed 
to exclude such orders or citations from the disclosure.\83\ One 
commentator stated that it would be simpler for the issuer to report 
all orders and citations received, rather than taking on the burden of 
reviewing the information at a later date to remove those that were 
reduced or dismissed. This commentator also noted that MSHA's summary 
data does not account for dismissals, and raised a concern that 
allowing issuers to omit dismissed orders and citations could result in 
confusion for those who refer to MSHA's site to compare the 
information.\84\
---------------------------------------------------------------------------

    \83\ See letters from AFL-CIO, AngloGold, CalPERS, CalSTRS, 
Chevron, EARTHWORKS, J. Estess, SIF, Trillium and UMWA.
    \84\ See letter from Chevron.
---------------------------------------------------------------------------

    On the other hand, other commentators requested that the final 
rules allow issuers to exclude from disclosure orders or citations that 
have been subsequently dismissed or reduced below a reportable level 
prior to filing the periodic report.\85\ One commentator asserted that 
such an approach would be consistent with the purposes of Section 1503, 
which the commentator characterized as providing accurate disclosure of 
violations that continue to be asserted or have been adjudicated, 
rather than requiring disclosure of matters that the FMSHRC has 
dismissed or reduced below a reportable level.\86\ Another commentator 
noted that vacated citations are removed entirely from MSHA's data 
retrieval system.\87\
---------------------------------------------------------------------------

    \85\ See letters from Barrick Gold, DGS Law, Freeport-McMoRan, 
NMA, NSSGA and Rio Tinto.
    \86\ See letter from Freeport-McMoRan.
    \87\ See letter from DGS Law.
---------------------------------------------------------------------------

    Although comments were mixed on the disclosure of dismissed or 
reduced orders or citations, most of the commentators supported the 
Commission's approach of permitting issuers to include additional 
information and disclosures, such as disclosure of orders or citations 
that the issuer is contesting or annotated disclosure providing 
information about the status of such orders or citations.\88\
---------------------------------------------------------------------------

    \88\ See letters from AngloGold, Barrick Gold, CalPERS, CalSTRS, 
Chris Barnard (``Barnard''), Estess, NYSBA, Portland Cement 
Association (``PCA''), SIF, Trillium and UMWA.
---------------------------------------------------------------------------

c. Final Rule
    We are adopting the final rule with some modifications from the 
proposal. Consistent with the proposal, the final rule requires each 
Form 10-Q to include the required disclosure for the quarter covered by 
the report. For each of Forms 20-F and 40-F, the disclosure is required 
for the issuer's fiscal year. Similarly, in a change from the proposal, 
the final rule requires each Form 10-K to include disclosure of the 
information for the fiscal year only, not also for the fourth quarter.
    We are persuaded by commentators that requiring information about 
both the fourth quarter and the entire year in the Form 10-K would add 
incrementally to the burden of the rule, is not required by the Act, 
and may not add significant useful information to the report. We 
believe the approach we are adopting is consistent with the Act, which 
requires disclosure in each periodic report ``for the time period 
covered by the report,'' because the Form 10-K covers the fiscal year. 
While requiring both full year and fourth quarter data might provide 
some incremental additional useful information, we do not believe it is 
necessary to implement Section 1503 or that the benefits of the 
additional disclosure would clearly justify the burden of preparing it. 
Among issuers that have provided disclosure under the Act in their most 
recent annual report on Form 10-K, practices were mixed, with some 
providing the information for both the fourth quarter and the complete 
fiscal year, some providing the information for the complete fiscal 
year, and a minority providing the information for only the fourth 
quarter. Although we acknowledge that certain limited information is 
currently reported for the fourth quarter only in Form 10-K, we believe 
that the requirement to provide full-year information in the Form 10-K 
is more appropriate because it is consistent with the general Form 10-K 
requirement to report results as of the issuer's fiscal year-end.\89\ 
We note that although the final rule requires disclosure covering the 
fiscal year, issuers are permitted, but not required, to also 
separately present the information for the fourth quarter.
---------------------------------------------------------------------------

    \89\ See Articles 3 and 8 of Regulation S-X (17 CFR 210.3 and 
210.8).
---------------------------------------------------------------------------

    The final rule does not allow issuers to exclude information about 
orders or citations that were received during the time period covered 
by the report but subsequently dismissed, reduced or vacated.\90\ 
Although we understand that, because mine operators have the right to 
contest orders or citations they receive through the administrative 
process,\91\ there is a possibility an operator's challenge would 
result in dismissal of the order or citation or in a reduction in the 
severity of the order or citation below the level that triggers 
disclosure under Section 1503(a), we believe the language of Section 
1503(a) of the Act dictates that all orders or citations received from 
MSHA be disclosed. However, as supported by most commentators, the rule 
does not prohibit the inclusion of additional disclosure with regard to 
the status of orders or citations received. As noted in the Proposing 
Release, we would expect that issuers will include disclosure that 
complies with our existing disclosure requirements when providing any 
such information.
---------------------------------------------------------------------------

    \90\ The final rule also does not allow issuers to exclude 
information about orders or citations that it is contesting. See the 
detailed discussion of this topic under Section II.A.4.b below.
    \91\ See 30 U.S.C. 815(d).
---------------------------------------------------------------------------

4. Required Disclosure Items
    Section 1503(a) of the Act includes a list of items required to be 
disclosed in periodic reports. We proposed that those items be 
reiterated in proposed Item 106 of Regulation S-K.\92\ As discussed in 
more detail below, we also proposed instructions to certain of the 
disclosure items specified in Section 1503(a) to clarify the scope of 
the disclosure we would expect issuers to provide in order to comply 
with the statute's requirements and proposed one additional disclosure 
item not required by the Act. We discuss each proposed disclosure item 
below. Those disclosure items on which we received little or no comment 
are discussed at the end of this section.
---------------------------------------------------------------------------

    \92\ In this release, we reference proposed Item 106 of 
Regulation S-K when discussing the proposed disclosure requirements, 
but note that the same analyses apply to the corresponding 
provisions in proposed Item 16J of Form 20-F and proposed Paragraph 
(18) of General Instruction B of Form 40-F, which are identical in 
all respects. The same approach applies to the references in this 
release to the final rules we are adopting as Item 104 of Regulation 
S-K, Item 16H of Form 20-F and Paragraph (16) of General Instruction 
B of Form 40-F.
---------------------------------------------------------------------------

    a. The total number of violations of mandatory health or safety 
standards that could significantly and substantially contribute to the 
cause and 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 Act references violations that could 
``significantly and substantially contribute to the cause and effect of 
a coal or other mine safety or health hazard under section 104'' of the 
Mine Act. Section 104 of the Mine Act requires MSHA inspectors to issue 
various citations and orders for violations of health and safety

[[Page 81769]]

standards.\93\ A violation of a mandatory safety standard that is 
reasonably likely to result in a reasonably serious injury or illness 
under the unique circumstance contributed to by the violation 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 determines whether the violation is ``S&S'' 
or not.\95\ The MSHA data retrieval system currently provides 
information about all citations and orders issued, and notes which of 
those citations or orders are ``S&S.'' \96\
---------------------------------------------------------------------------

    \93\ 30 U.S.C. 814.
    \94\ Secretary of Labor v. Mathies Coal Company, 6 FMSHRC 1 
(January 1984). See also MSHA Program Policy 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'') which provides guidelines for interpreting Section 
104(d)(1) and (e)(1) of the Mine Act [30 U.S.C. 814(d)(1) and 
(e)(1)]. In determining whether conditions created by a violation 
could significantly and substantially contribute to the cause and 
effect of a mine safety or health hazard, inspectors must determine 
whether there is an underlying violation of a mandatory health or 
safety standard, whether there is a discrete safety or health hazard 
contributed to by the violation, whether there is a reasonable 
likelihood that the hazard contributed to will result in an injury 
or illness, and whether there is a reasonable likelihood that the 
injury or illness in question will be of a reasonably serious 
nature. Id.
    \95\ MSHA Program Policy Manual Vol. 1, p. 23.
    \96\ The MSHA data retrieval system can be accessed at http://
www.msha.gov/drs/drshome.HTM. Vacated citations and orders are 
removed from the data retrieval system.
---------------------------------------------------------------------------

    The proposed rules would require disclosure under this item of all 
citations received under Section 104 of the Mine Act that note an S&S 
violation. We requested comment on whether the final rules should 
instead require disclosure of all citations received under Section 104.
(2) Comments on the Proposed Amendments
    Most commentators supported the proposal to limit the required 
disclosure to S&S violations.\97\ Commentators stated that such an 
approach is consistent with the explicit language of the Act, and 
asserted that expanding the requirement to all violations under Section 
104 of the Mine Act would not be useful to investors and could detract 
from the information required by the Act.\98\ However, a few 
commentators expressed the view that all Section 104 violations should 
be disclosed in order to provide full disclosure to investors.\99\
---------------------------------------------------------------------------

    \97\ See letters from AFL-CIO, AngloGold, Chevron, Cleary, NMA, 
NYSBA, PCA, Rio Tinto and UMWA.
    \98\ See letters from NMA and Rio Tinto.
    \99\ See letters from Estess, SIF and Trillium.
---------------------------------------------------------------------------

(3) Final Rule
    We are adopting the provision as proposed. We continue to believe 
that the language of Section 1503(a)(1)(A) referencing violations that 
could ``significantly and substantially contribute to the cause and 
effect of a coal or other mine safety or health hazard under section 
104'' was intended to elicit disclosure only of citations received 
under Section 104 of the Mine Act that note an S&S violation. We agree 
with commentators that expanding the disclosure requirement to include 
non-S&S violations under Section 104 of the Mine Act would expand the 
scope of the disclosure beyond that called for by Section 1503 of the 
Act and likely would not result in additional useful information being 
provided to investors that would justify the increased burdens on 
issuers.
    b. The total dollar value of proposed assessments from MSHA under 
the Mine Act.
(1) Proposed Amendments
    Section 1503(a)(1)(F) requires issuers to disclose, for each mine, 
the ``total dollar value of proposed assessments from [MSHA] under the 
[Mine] Act.'' The issuance of a citation or order by MSHA typically 
results in the assessment of a civil penalty against the mine operator. 
Penalties are assessed according to a formula that considers several 
factors, including a history of previous violations, size of operator's 
business, negligence by the operator, gravity of the violation, 
operator's good faith in trying to correct the violation promptly and 
the effect of the penalty on the operator's ability to stay in 
business.\100\ When any civil penalty is proposed to be assessed by 
MSHA, the mine operator has 30 days following receipt of the notice of 
proposed penalty to pay the penalty or file a contest and request a 
hearing before an FMSHRC administrative law judge.\101\
---------------------------------------------------------------------------

    \100\ 30 U.S.C. 815(b)(1)(B).
    \101\ See 30 CFR 100.7. If the proposed penalty is not paid or 
contested within 30 days of receipt, the proposed penalty becomes a 
final order of the FMSHRC and is not subject to review by any court 
or agency.
---------------------------------------------------------------------------

    The proposed rules would require that issuers disclose the total 
dollar amount of assessments of penalties proposed by MSHA during the 
time period covered by the report. Under the proposals, the disclosure 
would also include the cumulative total of all proposed assessments of 
penalties outstanding as of the last day of the period covered by the 
report. As proposed, this disclosure would include any dollar amounts 
of penalty assessments proposed during the time period that the issuer 
is contesting with the FMSHRC, although issuers would not be prohibited 
from including additional information noting that certain proposed 
assessments of penalties are being contested.
(2) Comments on the Proposed Amendments
    Some commentators approved of the proposal to require the total 
dollar amount of proposed penalties assessed by MSHA during the time 
period covered by the report as well as the cumulative total of all 
proposed assessments of penalties outstanding as of the date of the 
report.\102\ However, several other commentators expressed concerns 
about the proposal, in particular about the proposed requirement to 
disclose cumulative amounts of penalties outstanding as of the date of 
the report.\103\ Commentators noted that such disclosure is not 
required by Section 1503 and asserted that such a requirement would go 
beyond the scope of the Act.\104\ Some commentators expressed concern 
that the requirement could lead to inquiries to reconcile period-to-
period changes,\105\ and asserted that the disclosure would not 
necessarily be indicative of an issuer's safety record during the 
reporting period, but rather the issuer's decisions to pay or contest 
assessments.\106\
---------------------------------------------------------------------------

    \102\ See letters from AFL-CIO, EARTHWORKS, SIF, Trillium and 
UMWA.
    \103\ See letters from Chevron, Cleary, DGS Law, Freeport-
McMoRan, NMA and NYSBA.
    \104\ See, e.g., letters from Cleary, Freeport-McMoRan, NMA and 
Rio Tinto.
    \105\ See letters from Chevron and DGS Law.
    \106\ See letters from Chevron and Cleary.
---------------------------------------------------------------------------

    Several commentators agreed with the proposal that issuers should 
be required to include in the total dollar amount reported any proposed 
assessments of penalties that are being contested.\107\ Some 
commentators expressed a concern that allowing issuers to omit 
contested matters until they are deemed final could provide an 
incentive for operators to contest MSHA enforcement actions, which they 
believe would be contrary to public policy and could increase MSHA's 
backlog of pending cases.\108\ Other commentators expressed concerns 
about this proposed requirement, and requested that the final rules 
permit issuers to exclude proposed assessments of penalties that

[[Page 81770]]

are being contested.\109\ Among the reasons asserted in support of such 
an approach is the commentators' view that requiring issuers to include 
proposed assessments of penalties that are being contested in the total 
dollar amount reported could, in essence, amount to denial of due 
process for the issuer because reporting such information has the 
potential to cause reputational harm for the issuer before resolution 
of the matter has been reached.\110\
---------------------------------------------------------------------------

    \107\ See letters from AFL-CIO, AngloGold, CalPERS, CalSTRS, 
Chevron, EARTHWORKS, Estess, SIF, Trillium and UMWA.
    \108\ See letters from AFL-CIO and UMWA.
    \109\ See letters from Barrick Gold, NMA and Rio Tinto.
    \110\ See letters from Barrick Gold and NMA.
---------------------------------------------------------------------------

    Commentators generally agreed that if contested amounts are 
required to be reported, issuers should be permitted to note the 
contested amounts.\111\ Some of these commentators asserted that 
contested amounts should be permitted to be reported separately.\112\ 
Others agreed with the Commission's proposal to require disclosure of 
one total dollar amount that encompasses both contested and uncontested 
amounts, but were of the view that issuers should be permitted to 
provide additional disclosure to explain contested amounts if they 
choose.\113\
---------------------------------------------------------------------------

    \111\ See letters from AFL-CIO, AngloGold, Chevron, NMA, Rio 
Tinto and UMWA.
    \112\ See letters from AngloGold and NMA.
    \113\ See letters from AFL-CIO, Chevron, Rio Tinto and UMWA.
---------------------------------------------------------------------------

    We received two comment letters suggesting that the disclosure 
required by this item should be limited to those penalties proposed for 
the type of violations required to be disclosed under Section 1503(a), 
rather than for all penalties proposed during the time period.\114\ 
These commentators stated their view that requiring disclosure of all 
penalties--not only those that relate to actions that have to be 
reported under Section 1503--would go beyond the requirements of the 
Act and increase the burdens on issuers in preparing this disclosure.
---------------------------------------------------------------------------

    \114\ See letters from Oxford Resources Partners LP and Rio 
Tinto.
---------------------------------------------------------------------------

(3) Final Rule
    We are adopting a final rule that provides that disclosure is 
required in each periodic report of the total dollar amount of 
assessments proposed by MSHA during the period covered by the report. 
Therefore, each Form 10-Q is required to include the dollar amount of 
assessments proposed by MSHA during the quarter, while the Form 10-K, 
Form 20-F and Form 40-F must include the dollar amount of assessments 
proposed by MSHA during the fiscal year.
    We are not adopting the proposed requirement to also disclose the 
cumulative total of all assessments outstanding as of the last day of 
the reporting period. After considering the comments received, we are 
persuaded that expanding the disclosure requirement in this manner 
beyond the scope of the Act is not necessary and likely would not 
result in additional useful information being provided to investors 
that would justify the increased burden on issuers. We note that the 
cumulative total of all outstanding assessments as of the last day of 
the reporting period is not mandated by Section 1503 of the Act, which 
requires, ``for the time period covered by the report * * * the total 
dollar value of proposed assessments from the Mine Safety and Health 
Administration under [the Mine Act].'' In addition, we believe the 
final rule is consistent with the information many issuers are 
currently providing in their periodic reports to comply with the Act.
    The final rule requires disclosure of the amount of all assessments 
of penalties proposed by MSHA during the reporting period relating to 
any type of violation, and regardless of whether such proposed 
assessments are being contested or were dismissed or reduced prior to 
the date of filing of the periodic report. We acknowledge commentators' 
concerns about the potential for reputational harm from disclosing 
proposed assessments before they are final, but we believe that the 
language of Section 1503 requires disclosure of all such proposed 
assessments. In addition, we note that information about proposed 
assessments that are being contested is already available on MSHA's Web 
site. We note that issuers may include additional disclosure explaining 
the status of these orders, citations and assessments. The final rule 
adds an instruction clarifying that contested amounts may neither be 
omitted from the disclosure nor reported separately, but that issuers 
are permitted to note the contested amounts and provide additional 
disclosure.

    c. The total number of mining-related fatalities.
(1) Proposed Amendments
    Section 1503(a)(1)(G) of the Act requires issuers to disclose, for 
each mine, ``the total number of mining-related fatalities.'' Under the 
proposed rules, the requirement to disclose mining-related fatalities 
would apply to fatalities at mines that are subject to the Mine Act and 
not to mining-related fatalities in other jurisdictions. As proposed, 
issuers would report all such fatalities that are required to be 
disclosed under MSHA regulations, unless the fatality is determined to 
be ``non-chargeable'' to the mining industry.\115\
---------------------------------------------------------------------------

    \115\ See Section II.A.4.f of the Proposing Release [75 FR 80374 
at 80379] for a discussion of MSHA's process for determining whether 
a fatality is ``non-chargeable'' to the mining industry.
---------------------------------------------------------------------------

Comments on the Proposed Amendments
    Several commentators supported the proposal to require disclosure 
of mining-related fatalities only at mines that are subject to the Mine 
Act.\116\ Many of these commentators noted that this interpretation is 
consistent with the scope of Section 1503(a), which by its terms 
applies to mines that are subject to the Mine Act.\117\ Commentators 
also raised concerns that if the disclosure requirement were to be 
expanded to cover mining-related fatalities outside of the United 
States, it would be difficult to apply a standard for what constitutes 
a ``mining-related'' fatality in non-U.S. jurisdictions.\118\
---------------------------------------------------------------------------

    \116\ See letters from AngloGold, Barrick Gold, Cleary, Estess, 
NMA, NYSBA and Rio Tinto.
    \117\ See letters from AngloGold, Cleary, NMA, NYSBA and Rio 
Tinto.
    \118\ See letters from AngloGold, Estess, NMA and Rio Tinto.
---------------------------------------------------------------------------

    Other commentators stated that reporting on mining-related 
fatalities should apply to all mines operated by an issuer (or a 
subsidiary of the issuer) that files periodic reports with the 
Commission, regardless of the location of the issuer's mines 
worldwide.\119\ Two of these commentators asserted that such 
information is material to investors and to the issuer.\120\ The 
majority of the commentators who recommended applying the disclosure 
requirement to all mining-related fatalities regardless of the location 
of the mine also recommended that the MSHA framework should be applied 
to non-U.S. mining-related fatalities for reporting purposes.\121\
---------------------------------------------------------------------------

    \119\ See letters from AFL-CIO, EARTHWORKS, SIF, Trillium and 
UMWA.
    \120\ See letters from SIF and Trillium.
    \121\ See letters from AFL-CIO, Estess, SIF, Trillium and UMWA.
---------------------------------------------------------------------------

    Several commentators concurred with the Commission's proposal to 
require disclosure of all fatalities required to be reported pursuant 
to MSHA regulations, unless the fatality has been determined to be 
``non-chargeable'' to the mining industry.\122\ Two commentators stated 
that an instruction should be added to the rule specifying this 
interpretation of the disclosure requirement.\123\ Two commentators 
also recommended that we add an instruction to the rule clarifying that 
fatalities are not required

[[Page 81771]]

to be disclosed while under review by MSHA's Fatality Review Committee 
if the issuer has a good faith belief that the fatality is non-
chargeable, and that if the fatality is ultimately determined to be 
chargeable, the issuer would include it in its next periodic 
report.\124\ Similarly, other commentators asserted that it would be 
appropriate to require disclosure only of fatalities that, as of the 
last day of the reporting period, have been determined to be 
``chargeable'' by MSHA's Fatality Review Committee.\125\
---------------------------------------------------------------------------

    \122\ See letters from AFL-CIO, Barrick Gold, Cleary, DGS Law, 
Estess, NYSBA, PCA, Rio Tinto and UMWA.
    \123\ See letters from Cleary and Estess.
    \124\ See letters from Cleary and DGS Law.
    \125\ See letters from AngloGold, Chevron, MNA, NSSGA and Rio 
Tinto.
---------------------------------------------------------------------------

    Other commentators stated that all fatalities should be required to 
be disclosed, whether chargeable or non-chargeable,\126\ but noted that 
issuers should be permitted to explain non-chargeable incidents in 
their reports.\127\
---------------------------------------------------------------------------

    \126\ See letters from EARTHWORKS, SIF and Trillium.
    \127\ See letters from SIF and Trillium.
---------------------------------------------------------------------------

(3) Final Rule
    After consideration of the comments received, we are adopting the 
final rule as proposed, with an added instruction specifying that 
fatalities determined by MSHA not to be mining-related may be excluded.
    The final rule requires disclosure of mining-related fatalities at 
mines that are subject to the Mine Act. Although we considered the 
views of those commentators who believe the disclosure requirement 
should encompass mines in all jurisdictions, we continue to believe 
that this disclosure requirement encompasses mining-related fatalities 
only at mines that are subject to the Mine Act. As we noted in the 
Proposing Release, Section 1503(a)(1)(G) is the only provision of the 
Act that does not specifically reference the Mine Act, a specific 
notice, order or citation from MSHA, or the FMSHRC, but we are of the 
view that interpreting Section 1503 as limited to mines that are 
subject to the provisions of the Mine Act is appropriate because it 
will result in consistency among reporting obligations.
    MSHA regulations require mine operators to report to MSHA all 
fatalities that occur at a mine.\128\ MSHA has also established 
policies and procedures for determining whether a fatality 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 the disclosure required by this 
section is intended to include all fatalities that are required to be 
disclosed under MSHA regulations, unless the fatality is determined to 
be ``non-chargeable'' to the mining industry. The final rules specify 
that disclosure is required of all fatalities, unless the fatality is 
determined to be ``non-chargeable.'' We appreciate the objection raised 
by some commentators about requiring reporting of fatalities that are 
under review by MSHA's Fatality Review Committee if the issuer has a 
good faith belief that the fatality is non-chargeable, but we believe 
it would be more consistent with Section 1503, our treatment of other 
disclosure items under Section 1503 (such as the reporting of contested 
matters under the final rules discussed above) and MSHA's reporting of 
fatalities \130\ to require reporting of all fatalities, other than 
those that have been determined by MSHA to be non-chargeable. Issuers 
that wish to provide additional information about fatalities, such as 
whether a fatality is under review by MSHA, are not prohibited from 
doing so under the final rules.
---------------------------------------------------------------------------

    \128\ See 30 CFR 50.10 and 50.20.
    \129\ See MSHA Accident/Illness Investigation Procedures 
Handbook, Chapter 2 Release 1 (June 2011) p. 21 located at http://www.msha.gov/READROOM/HANDBOOK/PH11-I-1.pdf (``MSHA Accident/Illness 
Handbook'').
    \130\ We note that MSHA makes publicly available its reports of 
non-chargeable mining deaths, which include the date of the 
incident, the mine name and the name of the operating company on its 
Web site. See http://www.msha.gov/Fatals/NonChargeables/NonChargeableFatalshome.asp.
---------------------------------------------------------------------------

    d. Any pending legal action before the Federal Mine Safety and 
Health Review Commission involving such coal or other mine.
(1) Proposed Amendments
    Section 1503(a)(3) requires disclosure of ``[a]ny pending legal 
action before the Federal Mine Safety and Health Review Commission 
involving such coal or other mine.'' Under the proposed rules, any 
legal actions before the FMSHRC involving a coal or other mine for 
which the issuer or a subsidiary of the issuer is the operator would be 
disclosed in the periodic report covering the time period during which 
the legal action was initiated. As proposed, the rules would require 
the information about pending legal actions to be updated in subsequent 
periodic reports if there are developments material to the legal action 
that occur during the time period covered by such report. As proposed, 
the disclosure required by this item would include the date the pending 
legal action was instituted and by whom (e.g., MSHA or the mine 
operator), the name and location of the mine involved, and a brief 
description of the category of order or citation underlying the 
proceeding.
(2) Comments on the Proposed Amendments
    We received comment letters supporting the proposal to require 
disclosure about pending legal actions in the periodic report covering 
the period in which the action was initiated, with updates in 
subsequent reports for developments material to the pending 
action.\131\ Certain commentators also stated that it was appropriate 
to require contextual information for each pending legal action.\132\
---------------------------------------------------------------------------

    \131\ See, e.g., letters from AFL-CIO, CalPERS, CalSTRS, 
EARTHWORKS, Estess, SIF, Trillium and UMWA.
    \132\ See letters from AFL-CIO, Estess, and UMWA.
---------------------------------------------------------------------------

    However, other commentators raised concerns about the proposed 
approach to this disclosure item.\133\ Commentators found both the 
proposed updating requirement and the proposed requirement to include 
contextual information about each pending legal action to be 
problematic, noting that the language of Section 1503 does not require 
such information.\134\ With respect to this disclosure, some 
commentators supported a requirement to report the number of pending 
legal actions,\135\ while others supported an alternative approach that 
would require issuers to report the number of pending legal actions 
initiated during the time period covered by the periodic report.\136\ 
One commentator expressed the view that it would be appropriate to 
allow issuers to disclose the number of matters pending before the 
FMSHRC, along with the number instituted and resolved in the reporting 
period, with a general description of the types of matters.\137\
---------------------------------------------------------------------------

    \133\ See letters from Chevron, Cleary, DGS Law, Freeport-
McMoRan, NMA, NSSGA and NYSBA.
    \134\ See letters from Cleary, DGS Law, NMA and NYSBA.
    \135\ See letters from Cleary and NMA.
    \136\ See letters from Chevron and NSSGA.
    \137\ See letter from Freeport-McMoRan.
---------------------------------------------------------------------------

    Some commentators expressed concerns that a requirement to provide 
updating information would result in voluminous disclosure, be overly 
burdensome for issuers and potentially be complicated for users of the 
information, because legal actions would likely overlap multiple 
periods prior to resolution.\138\ Many

[[Page 81772]]

commentators also stated that the proposed requirement for disclosure 
of contextual information for each pending legal action would be 
voluminous and unhelpful, unnecessarily burdening both the issuer and 
the user of the information.\139\ Commentators also noted that, due to 
the strict statutory language, no materiality standard can be applied 
to limit the number of legal actions that must be reported, and 
therefore determining what constitutes a ``material'' development in a 
case that may not be material to investors under our traditional 
materiality analysis may be problematic for issuers.\140\
---------------------------------------------------------------------------

    \138\ See, e.g., letters from Chevron (noting its preference 
that disclosure be limited to pending legal actions initiated during 
the reporting period, but suggesting that if updates are required, 
they should be limited to aggregate information on final resolutions 
reached during the reporting period), Cleary, DGS Law and NMA.
    \139\ See letters from Chevron, Cleary, Freeport-McMoRan, NMA 
and NSSGA.
    \140\ See letters from DGS Law, Freeport-McMoRan and NMA.
---------------------------------------------------------------------------

(3) Final Rule
    After considering the comments received on the proposed disclosure 
requirement, we are adopting a final rule that requires issuers to 
disclose, for each coal or other mine subject to the Mine Act, the 
identity of the mine and the number of legal actions involving such 
mine that were pending before the FMSHRC \141\ as of the last day of 
the period covered by the periodic report, as well as the aggregate 
number of legal actions instituted and the aggregate number of legal 
actions resolved during the reporting period. Instead of the proposal 
to require a brief description of the category of order or citation 
underlying each proceeding, the final rule requires that the total 
number of legal actions pending before the FMSHRC as of the last day of 
the time period covered by the report be categorized according to the 
type of proceeding, in accordance with the categories established in 
the Procedural Rules of the FMSHRC.\142\ These categories are:
---------------------------------------------------------------------------

    \141\ Other types of enforcement-related legal actions under the 
Mine Act may occur in federal district court or courts of appeal 
that do not involve FMSHRC at any stage. Although these legal 
actions are not within the scope of the disclosure requirement, we 
remind issuers of their obligation to report material legal 
proceedings under other provisions of our rules.
    \142\ See the Federal Mine Safety and Health Review Commission's 
Procedural Rules, 29 CFR Part 2700 (``FMSHRC Procedural Rules'').
---------------------------------------------------------------------------

     Contests of citations and orders, which typically are 
filed prior to an operator's receipt of a proposed penalty assessment 
from MSHA or relate to orders for which penalties are not assessed 
(such as imminent danger orders under Section 107 of the Mine Act). 
This category includes:
    [cir] Contests of citations or orders issued under section 104 of 
the Mine Act,
    [cir] contests of imminent danger withdrawal orders under section 
107 of the Mine Act, and
    [cir] emergency response plan dispute proceedings (as required 
under the Mine Improvement and New Emergency Response Act of 2006, Pub. 
L. 109-236, 120 Stat. 493); \143\
---------------------------------------------------------------------------

    \143\ See Subpart B of the FMSHRC Procedural Rules.
---------------------------------------------------------------------------

     contests of proposed penalties, which are administrative 
proceedings before the FMSHRC challenging a civil penalty that MSHA has 
proposed for the violation contained in a citation or order; \144\
---------------------------------------------------------------------------

    \144\ See Subpart C of the FMSHRC Procedural Rules.
---------------------------------------------------------------------------

     complaints for compensation, which are cases under section 
111 of the Mine Act that may be filed with the FMSHRC by miners idled 
by a closure order issued by MSHA who are entitled to compensation; 
\145\
---------------------------------------------------------------------------

    \145\ See Subpart D of the FMSHRC Procedural Rules.
---------------------------------------------------------------------------

     Complaints of discharge, discrimination or interference 
under section 105 of the Mine Act, which cover:
    [cir] Discrimination proceedings involving a miner's allegation 
that he or she has suffered adverse employment action because he or she 
engaged in activity protected under the Mine Act, such as making a 
safety complaint, and
    [cir] Temporary reinstatement proceedings involving cases in which 
a miner has filed a complaint with MSHA stating that he or she has 
suffered such discrimination and has lost his or her position; \146\
---------------------------------------------------------------------------

    \146\ See Subpart E of the FMSHRC Procedural Rules. See also 
``Guide to Commission Proceedings,'' available at http://www.fmshrc.gov/guides/englishguide.htm, Sections II.C and II.D.
---------------------------------------------------------------------------

     Applications for temporary relief, which are applications 
under section 105(b)(2) of the Mine Act for temporary relief from any 
modification or termination of any order or from any order issued under 
section 104 of the Mine Act (other than citations issued under section 
104(a) or (f) of the Mine Act): \147\ and
---------------------------------------------------------------------------

    \147\ See Subpart F of the FMSHRC Procedural Rules.
---------------------------------------------------------------------------

     Appeals of judges' decisions or orders to the FMSHRC, 
including petitions for discretionary review and review by the FMSHRC 
on its own motion.\148\
---------------------------------------------------------------------------

    \148\ See Subpart H of the FMSHRC Procedural Rules.
---------------------------------------------------------------------------

    We are not adopting the proposal to require certain additional 
information about the legal actions, such as the date the action was 
instituted and by whom, the location of the mine, or the proposal that 
would have required the information about legal actions to be updated 
for material developments in subsequent periodic reports. We recognize 
that this is a departure from the proposed requirement, but we agree 
with commentators who pointed out that the rule as proposed required 
information not necessary to implement Section 1503 and could result in 
voluminous disclosure of limited informational value. We note that 
Section 1503 calls for disclosure of ``[a]ny pending legal action 
before the Federal Mine Safety and Health Review Commission involving 
such coal or other mine'' but does not specify what information is 
required to be disclosed in accordance with this disclosure item.
    We believe the final rule satisfies the statutory language and will 
provide users of this information with a clear picture of the extent 
and nature of mine operators' involvement in legal actions. Further, we 
believe that the requirement to provide the number of legal actions in 
specified categories will provide consistency in the disclosure, and 
provide users of this information with a general sense of the types of 
legal actions involving mine operators. Because all documents filed 
with the FMSHRC in these legal actions are served on all the involved 
parties, we believe that this information about legal actions is 
readily available to issuers. We do not believe that these requirements 
impose significant additional burdens on issuers.
    Issuers who wish to provide additional information about pending 
legal actions are not prohibited from doing so under the final rules. 
In addition, we note that Item 103 of Regulation S-K (Legal 
Proceedings) continues to apply, so that to the extent a legal 
proceeding is required to be disclosed under that item, disclosure and 
updates for material developments would be required.
    e. A brief description of each category of violations, orders and 
citations reported.
(1) Proposed Amendments
    Although not required by Section 1503 of the Act, the proposed 
rules would require issuers to provide a brief description of each 
category of violations, orders and citations reported so that investors 
can understand the basis for the violations, orders or citations 
referenced.
(2) Comments on the Proposed Amendments
    Some commentators expressed the view that the information otherwise 
provided as required by the Act would be sufficient without requiring 
the brief

[[Page 81773]]

description of each category of violations, orders and citations 
reported.\149\ Commentators particularly noted concerns about the 
expansion of the disclosure requirement beyond what is set forth in 
Section 1503.\150\ One commentator raised a concern that the 
requirement would result in boilerplate language.\151\ Others noted 
that investors who are interested in finding more detail and 
descriptions of the information reported can find the information on 
MSHA's Web site \152\ or in the Mine Act.\153\
---------------------------------------------------------------------------

    \149\ See letters from NMA, Chevron, Cleary, IMA-NA and WMA.
    \150\ See letters from Cleary, IMA-NA and WMA.
    \151\ See letter from Cleary.
    \152\ See letter from Chevron.
    \153\ See letter from Cleary.
---------------------------------------------------------------------------

    Several other commentators supported the proposal to require the 
additional disclosure.\154\ Some commentators expressed the view that 
this information would be useful to investors beyond the statistics 
provided under Section 1503 because it would provide context that would 
allow investors to weigh the significance of the reported 
information.\155\ Three commentators suggested that clarification of 
the requirement was needed, such as a generic description or glossary 
developed by the Commission that could be used in each periodic 
report.\156\ One commentator suggested that the basic descriptions 
should be provided once a year with the Form 10-K, and not be required 
to be included in every periodic report.\157\
---------------------------------------------------------------------------

    \154\ See letters from AFL-CIO, DGS Law, EARTHWORKS, Estess, 
NYSBA, SIF, Trillium and UMWA.
    \155\ See letters from SIF and Trillium.
    \156\ See letters from NMA and PCA. See also letter from Chevron 
(stating its opposition to inclusion of the requirement, but 
suggesting this approach as a potential alternative).
    \157\ See letter from DGS Law.
---------------------------------------------------------------------------

(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 disclosure that would be 
elicited by the proposed requirement would not be useful enough to 
investors to justify the expansion of the disclosure requirement beyond 
the scope of Section 1503. We note that the information is not required 
by Section 1503, and issuers, who have been providing the required 
disclosure since the effective date of Section 1503, have generally not 
been providing this information. However, issuers may provide 
additional information in their periodic reports to the extent they 
believe it would be useful to investors. In addition, we note that if 
particular mine safety issues are material and required to be disclosed 
under our other rules, then information about the nature of the 
violation likely would be necessary to satisfy our other disclosure 
requirements.
    f. Other disclosure items specified in Section 1503(a).
    In addition to the disclosure items discussed above, proposed Item 
106 of Regulation S-K reiterated the language of Section 1503(a) with 
respect to several other items required to be disclosed under the Act. 
The Proposing Release did not request comment specifically on these 
items. We did, however, receive two supporting comments on some of 
these items, as discussed below. We are adopting these items as 
proposed.
(1) Proposed Amendments
    i. The total number of orders issued under Section 104(b) of the 
Mine Act.
    Section 1503(a)(1)(B) of the Act requires disclosure of ``the total 
number of orders issued under section 104(b) of [the Mine Act].'' Under 
our proposal, each issuer that is required under Section 1503(a) to 
provide mine safety disclosure would be required to provide the total 
number of orders issued under Section 104(b) of the Mine Act for each 
coal or other mine for the time period covered by the report. Section 
104(b) of the Mine Act covers violations that had previously been cited 
under Section 104(a) that, upon follow-up inspection by MSHA, are found 
not to have been totally abated within the prescribed time period, 
which results in the issuance of an order requiring the mine operator 
to immediately withdraw all persons (except certain authorized persons) 
from the mine.
    ii. The total number of citations and orders for unwarrantable 
failure of the mine operator to comply with mandatory health and safety 
standards under Section 104(d) of the Mine Act.
    Under Section 104(d) of the Mine Act, an inspector issues a 
citation if the inspector finds a violation of a mandatory health or 
safety standard, and also finds that, while the conditions do not cause 
imminent danger, the violation could significantly and substantially 
contribute to the cause and effect of a safety or health hazard, and 
that the violation is caused by an unwarrantable failure of the 
operator to comply with the health and safety standards. If, in the 
same inspection or an inspection within 90 days, an inspector finds 
another violation of a mandatory health or safety standard and finds 
such violation to also be caused by an unwarrantable failure of the 
operator to comply with the health and safety standards, the inspector 
issues an order requiring the mine operator to immediately withdraw all 
persons (except certain authorized persons) from the mine. The proposed 
rule would implement the Act's requirement to disclose these citations 
and orders issued during the reporting period.
    iii. The total number of flagrant violations under Section 
110(b)(2) of the Mine Act.
    Section 110(b)(2) of the Mine Act is a penalty provision that 
provides that violations that are deemed to be ``flagrant'' may be 
assessed a maximum civil penalty. The term ``flagrant'' with respect to 
a violation means ``a reckless or repeated failure to make reasonable 
efforts to eliminate a known violation of a mandatory health or safety 
standard that substantially and proximately caused, or reasonably could 
have been expected to cause, death or serious bodily injury.'' \158\ 
The proposed rule would implement the Act's requirement to disclose the 
total number of flagrant violations under Section 110(b)(2) of the Mine 
Act for the reporting period.
---------------------------------------------------------------------------

    \158\ 30 U.S.C. 820(b)(2).
---------------------------------------------------------------------------

    iv. The total number of imminent danger orders issued under Section 
107(a) of the Mine Act.
    An imminent danger order is issued under Section 107(a) of the Mine 
Act if the MSHA inspector determines there is an imminent danger in the 
mine. The order requires the operator of the mine to cause all persons 
(except certain authorized persons) to be withdrawn from the mine until 
the imminent danger and the conditions that caused such imminent danger 
cease to exist. This type of order does not preclude the issuance of a 
citation under Section 104 or a penalty under Section 110. The proposed 
rule would implement the Act's requirement to disclose the total number 
of imminent danger orders issued under Section 107(a) of the Mine Act 
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 standards that 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 the Mine Act.
    If MSHA determines that a mine has a ``pattern'' of violations of 
mandatory health or safety standards that 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

[[Page 81774]]

104(e) of the Mine Act and MSHA regulations the agency is required to 
notify the operator of the existence of such pattern. The proposed rule 
would implement the Act's requirement to disclose the receipt of such 
notices during the reporting period.
    vi. A list of mines for which the issuer or a subsidiary received 
written notice from MSHA of the potential to have such a pattern.
    MSHA regulations state that MSHA will give the operator written 
notice of the potential to have a pattern of violations of mandatory 
health or safety standards that 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 the 
Mine Act.\159\ The proposed rule would implement the Act's requirement 
to disclose the receipt of such notices during the reporting period.
---------------------------------------------------------------------------

    \159\ See 30 CFR 104.4.
---------------------------------------------------------------------------

(1) Comments on the Proposed Amendments
    We received two comments supporting the proposed requirements that 
the total number of 104(b) orders, citations and orders for 
unwarrantable failures, flagrant violations and imminent danger orders 
be reported.\160\ We did not receive any comments on the proposed 
requirements to disclose a list of mines that receive notice of a 
pattern or potential pattern of violations.
---------------------------------------------------------------------------

    \160\ See letters from AFL-CIO and UMWA.
---------------------------------------------------------------------------

(2) Final Rule
    Consistent with the proposal, we are adopting final rules requiring 
each issuer that is required under Section 1503(a) to provide mine 
safety disclosure to provide, for each coal or other 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 the mine operator to comply with mandatory health and safety 
standards under Section 104(d) of the Mine Act;
     The total number of flagrant violations under Section 
110(b)(2) of the Mine Act;
     The total number of imminent danger orders issued under 
Section 107(a) of the Mine Act;
     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 standards that 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 the Mine Act; and
     A list of mines for which the issuer or a subsidiary 
received written notice from MSHA of a potential to have such a pattern 
of violations of mandatory health or safety standards.

B. Form 8-K Filing Requirement

    Section 1503(b) of the Act requires each issuer that is an 
operator, or has a subsidiary that is an operator, of a coal or other 
mine to report on Form 8-K the receipt of certain notices from 
MSHA.\161\ We are adopting revisions to Form 8-K to add new Item 1.04 
to implement this requirement.
---------------------------------------------------------------------------

    \161\ Section 1503(b) of the Act.
---------------------------------------------------------------------------

2. Disclosure Requirements and Deadline
a. Proposed Amendments
    We proposed to amend Form 8-K to add new Item 1.04, which would 
require 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 under Section 107(a) of the Mine 
Act; \162\
---------------------------------------------------------------------------

    \162\ See Section II.A.4.f.(1)iv. above for a description of an 
imminent danger order issued under Section 107(a) of the Mine Act 
[30 U.S.C. 817(a)].
---------------------------------------------------------------------------

     Written notice from MSHA of a pattern of violations of 
mandatory health or safety standards that 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 the Mine Act; \163\ or
---------------------------------------------------------------------------

    \163\ See Section II.A.4.f.(1)v. above for a description of the 
written notice from MSHA regarding a pattern of violations under 
Section 104(e) of the Mine Act [30 U.S.C. 814(e)].
---------------------------------------------------------------------------

     Written notice from MSHA of the potential to have a 
pattern of such violations.\164\
---------------------------------------------------------------------------

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

    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, the category of order or notice, and the name and location of 
the mine involved.
b. Comments on the Proposed Amendments
    The Proposing Release noted that the events that would trigger 
filing under proposed Item 1.04 are also events that are required to be 
disclosed in periodic reports under Section 1503(a) of the Act and our 
proposed Item 106 of Regulation S-K. We received comment letters 
supporting adoption of the rule as proposed, under which the orders and 
notices that trigger the Form 8-K filing requirement would also be 
disclosed in issuers' periodic reports.\165\ Commentators noted that 
the events that would trigger the Form 8-K filing are significant, and 
expressed their view that because the events are already monitored by 
the issuer, there would not be an extra burden in reporting them 
twice.\166\ However, other commentators indicated that the proposed 
rule should be revised to minimize duplicative disclosure.\167\ One 
commentator stated that, because these orders and notices are required 
to be reported in the issuer's periodic reports, the proposed Form 8-K 
requirement is needlessly duplicative and burdensome.\168\ Another 
commentator suggested eliminating duplicative reporting by removing the 
Form 8-K filing requirement and allowing the information to be reported 
only in the issuer's periodic reports.\169\
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    \165\ See letters from AFL-CIO, SIF, Trillium and UMWA.
    \166\ See letters from SIF and Trillium.
    \167\ See letters from Chevron, Estess, NMA and NSSGA.
    \168\ See letter from NSSGA.
    \169\ See letter from Chevron.
---------------------------------------------------------------------------

    Commentators that expressed a view were generally supportive of the 
information proposed to be required in Item 1.04 of Form 8-K.\170\ 
Commentators also indicated that no additional information beyond what 
was proposed should be required to be disclosed.\171\
---------------------------------------------------------------------------

    \170\ See letters from Estess, SIF and Trillium.
    \171\ See letters from Chevron, Cleary and Estess.
---------------------------------------------------------------------------

    Some commentators supported the proposed four business day filing 
period for a Form 8-K under proposed Item 1.04.\172\ Others suggested 
different filing deadlines for the Form 8-K. Three commentators 
supported longer filing deadlines, such as seven or ten business days, 
in order to allow issuers to conduct analysis and provide more detail 
or complete information about the event.\173\ One commentator, drawing 
a distinction between the type of information required to be disclosed 
under Section 1503 and other material items covered by Form 8-K, 
recommended that the Form 8-K be required once a year, allowing issuers 
to provide aggregate information about any such orders or notices 
received during the year.\174\ In addition, one commentator requested 
clarification of

[[Page 81775]]

the filing requirement for an order or notice vacated by MSHA prior to 
the filing deadline for the Form 8-K,\175\ and another commentator 
recommended that the final rule provide that if the order triggering 
the Form 8-K filing is vacated, dismissed or reduced below a reportable 
level during the reporting period, the Form 8-K filing is not 
required.\176\
---------------------------------------------------------------------------

    \172\ See letters from Estess, SIF and Trillium.
    \173\ See letters from NMA (suggesting seven business day 
deadline), Chevron (suggesting ten business day deadline) and PCA 
(suggesting ten calendar day deadline).
    \174\ See letter from NSSGA.
    \175\ See letter from DGS Law (noting that vacated citations are 
removed entirely from the MSHA data retrieval system).
    \176\ See letter from NMA.
---------------------------------------------------------------------------

c. Final Rule
    After considering the comments, we are adopting new Item 1.04 to 
Form 8-K as proposed. Under the final rule, issuers are required to 
file a Form 8-K under new Item 1.04 no later than four business days 
after the receipt by the issuer (or a subsidiary of the issuer) of an 
imminent danger order under Section 107(a) of the Mine Act, written 
notice from MSHA of a pattern of violations of mandatory health or 
safety standards that 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 the Mine Act or 
written notice from MSHA of the potential to have a pattern of such 
violations. Item 1.04 of Form 8-K requires disclosure of the date of 
receipt of the order or notice, the category of order or notice, and 
the name and location of the mine involved.
    As discussed above, these orders and notices are also required to 
be disclosed under Section 1503(a) of the Act in issuers' periodic 
reports. Although we have considered the views of commentators that the 
disclosure is duplicative, we believe the plain language of Section 
1503 of the Act requires such orders and notices to be reported in both 
issuers' Forms 8-K and their periodic reports, and note that issuers 
generally seem to have been complying with these requirements since 
Section 1503(b) became effective. We have also considered commentators' 
views with respect to the filing deadline for the required Form 8-K. 
Although Section 1503(b) of the Act does not specify a filing deadline, 
we continue to believe that, because the triggering events are clear 
and do not require management to make rapid materiality judgments, the 
customary Form 8-K four business day deadline provides adequate time 
for issuers to prepare accurate and complete information.
    We understand there is a possibility that an order or notice could 
be issued and subsequently vacated by MSHA within the four business day 
time period for filing the Form 8-K. However, as discussed above with 
respect 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 be disclosed. We 
note that issuers may include additional disclosure explaining the 
status of these orders and notices if they choose to do so.\178\
---------------------------------------------------------------------------

    \177\ See Sections II.A.3 and II.A.4.b above.
    \178\ We 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 this provision, and only five of them report that the order was 
vacated within four business days of issuance of the order.
---------------------------------------------------------------------------

3. Treatment of Foreign Private Issuers
a. Proposed Amendments
    Our proposed rule would not extend the requirement to file current 
reports on Form 8-K to foreign private issuers. The Proposing Release 
noted that foreign private issuers are not required to file current 
reports on Form 8-K.\179\ Instead, a foreign private issuer is required 
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 
jurisdiction of incorporation, files, or is required to file, under the 
rules of any stock exchange, or otherwise distributes to its security 
holders.\181\
---------------------------------------------------------------------------

    \179\ See Exchange Act Rules 13a-11 and 15d-11 [17 CFR 240.13a-
11 and 15d-11].
    \180\ Referenced in 17 CFR 249.306.
    \181\ See Exchange Act Rule 13a-6 [17 CFR 240.13a-16].
---------------------------------------------------------------------------

b. Comments on the Proposed Amendments
    Several commentators agreed with our proposed approach not to apply 
the current reporting requirements of Section 1503(b) of the Act to 
foreign private issuers. These commentators noted that this approach is 
consistent with the statutory text of Section 1503(b), which refers 
only to Form 8-K, and with the Commission's current framework of 
reporting for foreign private issuers.\182\ Other commentators 
indicated that foreign private issuers should be required to file a 
Form 8-K to disclose information about the receipt of the specified 
orders and notices.\183\ One of these commentators expressed the view 
that the reporting requirements should be as equal as possible for all 
issuers so that U.S. issuers are not placed at a disadvantage.\184\
---------------------------------------------------------------------------

    \182\ See letters from AngloGold, Cleary, NMA, NYSBA, and Rio 
Tinto. See also advance comment letter from Rio Tinto.
    \183\ See letters from Estess, SIF and Trillium.
    \184\ See letter from Estess.
---------------------------------------------------------------------------

c. Final Rule
    After considering the comments, we have determined not to apply the 
new Form 8-K reporting requirement to foreign private issuers and are 
adopting the requirement as proposed. Although we are mindful of 
concerns that the disclosure requirement should be as equal as possible 
in order to avoid disadvantaging U.S. issuers in comparison to foreign 
private issuers, we continue to believe that this approach is 
consistent with Section 1503(b) of the Act, which references Form 8-K, 
a form applicable only to domestic issuers, not to foreign private 
issuers, and the Commission's current framework of reporting for 
foreign private issuers.\185\
---------------------------------------------------------------------------

    \185\ This approach is consistent with the manner in which the 
Commission implemented Sections 306 and 406 of the Sarbanes-Oxley 
Act of 2002. See Insider Trades During Pension Fund Blackout 
Periods, SEC Release No. 34-47225 (Jan. 22, 2003) [68 FR 4338], and 
Disclosure Required by Sections 406 and 407 of the Sarbanes-Oxley 
Act of 2002, SEC Release No. 33-8177 (Jan. 23, 2003) [68 FR 5110].
---------------------------------------------------------------------------

    Although they will not be subject to the Form 8-K requirement, 
foreign private issuers will not be able to avoid disclosure of the 
orders and notices specified in Item 1.04 of Form 8-K. As described 
above, we are adopting amendments to Forms 20-F and 40-F that require a 
foreign private issuer to disclose in each annual report the items 
described in Section 1503(a) of the Act. This is the same information 
that is required of domestic issuers, including disclosure of the 
receipt during the foreign private issuer's past fiscal year of any 
imminent danger order issued under Section 107(a) of the Mine Act, 
written notice from MSHA of a pattern of violations of mandatory health 
or safety standards that are of such a 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 the 
Mine Act, and written notice from MSHA of the potential to have a 
pattern of such violations.

C. Amendment to General Instruction I.A.3.(b) of Form S-3

a. Proposed Amendments
    Under our existing rules, the untimely filing on Form 8-K of 
certain items does not result in loss of Form S-3 eligibility, so long 
as Form 8-K reporting is current at the time the Form S-3 is filed. Our 
existing rules also provide a limited safe harbor from liability under 
Section 10(b) or Rule 10b-5 under the Exchange Act for certain Form 8-K 
items.\186\ We

[[Page 81776]]

proposed to amend General Instruction I.A.3.(b) of Form S-3 to provide 
that an untimely filing on Form 8-K regarding new Item 1.04 would not 
result in loss of Form S-3 eligibility. We did not propose to include 
new Item 1.04 in the list in Rules 13a-11(c) and 15d-11(c) under the 
Exchange Act of Form 8-K items eligible for the limited safe harbor 
from liability.
---------------------------------------------------------------------------

    \186\ Rules 13a-11(c) and 15d-11(c) each provides that ``[n]o 
failure to file a report on Form 8-K that 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.
---------------------------------------------------------------------------

b. Comments on the Proposed Amendments
    Commentators generally supported our proposal to amend General 
Instruction I.A.3(b) of Form S-3 to add proposed Item 1.04 to the list 
of items on Form 8-K with respect to which an issuer's failure timely 
to file the Form 8-K will not result in the loss of Form S-3 
eligibility.\187\ One commentator indicated that proposed Item 1.04 is 
similar to the existing exceptions provided in Form S-3, and expressed 
its view that, but for the statutory requirement to file current 
reports, for a diversified company engaging in mining operations, an 
individual shutdown or notice would not be material to the company and 
shareholders.\188\ Similarly, another commentator noted that when 
compared to other items that have been specified as not affecting Form 
S-3 eligibility, Item 1.04 would be no more significant than the other 
items, particularly in light of the absence of a materiality threshold 
for the reporting obligation under the proposed item and the range of 
issues, particularly under 107(a) of the Mine Act, that can trigger the 
disclosure requirement.\189\ One noted that a delay in reporting 
information that is typically not material to the issuer should not 
affect the issuer's Form S-3 eligibility.\190\
---------------------------------------------------------------------------

    \187\ See, e.g., letters from Chevron, Cleary, DGS Law, NMA, 
NYSBA, SIF and Trillium. One commentator noted with approval that, 
as a consequence, failure to file a Form 8-K with Section 1503(b) 
disclosure would not result in status as an ``ineligible issuer'' 
pursuant to Rule 405 under the Securities Act. See letter from 
Cleary.
    \188\ See letter from Chevron.
    \189\ See letter from DGS Law.
    \190\ See letter from NMA.
---------------------------------------------------------------------------

    We received some support for our proposal not to include Item 1.04 
in the list of items in Rules 13a-11(c) and 15d-11(c) with respect to 
which the failure to file a report on Form 8-K will not be deemed to be 
a violation of Section 10(b) or Rule 10b-5.\191\ However, other 
commentators indicated that the Commission should add Item 1.04 to the 
safe harbors.\192\ One commentator noted that such information will be 
made public by the MSHA data retrieval system.\193\ Others noted that 
disclosures regarding mine safety are typically immaterial events and 
the failure to timely report them on Form 8-K should not be considered 
a violation of Section 10(b) or Rule 10b-5.\194\
---------------------------------------------------------------------------

    \191\ See, e.g. letters from SIF and Trillium.
    \192\ See letters from AngloGold, Chevron, Cleary, NMA and 
NYSBA.
    \193\ See letter from AngloGold.
    \194\ See letters from Chevron and NMA.
---------------------------------------------------------------------------

c. Final Rule
    The final rule adds Item 1.04 to the list of Form 8-K items in 
General Instruction I.A.3.(b) of Form S-3 to provide that untimely 
filing of the new item will not result in the loss of Form S-3 
eligibility. Commentators were supportive of this approach, which we 
continue to believe is appropriate. Section 1503(b) of the Act does not 
address the Securities Act implications of a failure to timely file a 
Form 8-K. In addition, as noted in the Proposing Release, in the past 
when we have adopted new disclosure requirements that differed from the 
traditional periodic reporting obligations of companies, we have 
acknowledged concerns about the potentially harsh consequences of the 
loss of Form S-3 eligibility, and addressed such concerns by specifying 
that untimely filing of Forms 8-K relating to certain topics would not 
result in the loss of Form S-3 eligibility.\195\
---------------------------------------------------------------------------

    \195\ See Selective Disclosure and Insider Trading, SEC Release 
No. 33-7881 (Aug. 15, 2000) [65 FR 51715]; Additional Form 8-K 
Disclosure Requirements and Acceleration of Filing Date, SEC Release 
No. 33-8400 (March 16, 2004) [69 FR 15594] (the ``Additional Form 8-
K Disclosure Release'').
---------------------------------------------------------------------------

    Although we are mindful of commentators' concerns, we are not 
including Item 1.04 in the list of items in Rules 13a-11(c) and 15d-
11(c) with respect to which the failure to file a report on Form 8-K 
will not be deemed to be a violation of Section 10(b) or Rule 10b-5. We 
continue to believe, as we expressed when we adopted the limited safe 
harbor from liability under Section 10(b) or Rule 10b-5 under the 
Exchange Act for certain Form 8-K items, that the safe harbor is 
appropriate if the triggering event for the Form 8-K requires 
management to make a rapid materiality determination.\196\ The filing 
of an Item 1.04 Form 8-K is triggered by an event that does not require 
management to make a rapid materiality determination, and we continue 
to believe that it is not necessary to extend the safe harbor to this 
new item.
---------------------------------------------------------------------------

    \196\ See Additional Form 8-K Disclosure Release at 69 FR 15607.
---------------------------------------------------------------------------

III. Paperwork Reduction Act

A. Background

    Certain provisions of the final amendments contain ``collection of 
information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\197\ We published a notice requesting 
comment on the collection of information requirements in the Proposing 
Release for the rule amendments and we submitted these requirements to 
the Office of Management and Budget (``OMB'') for review in accordance 
with the PRA.\198\ The titles for the collection of information are:
---------------------------------------------------------------------------

    \197\ 44 U.S.C. 3501 et seq.
    \198\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------

    (A) ``Regulation S-K'' (OMB Control No. 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 were adopted under the Securities Act 
and the Exchange Act. They set forth the disclosure requirements for 
periodic and current reports filed by companies to inform 
investors.\199\ The hours and costs associated with preparing 
disclosure, filing forms and retaining records constitute reporting and 
cost burdens imposed by each collection of information. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
---------------------------------------------------------------------------

    \199\ Forms 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 disclosure requirements 
for registration statements filed by foreign private issuers under 
the Securities Act.
---------------------------------------------------------------------------

B. Summary of the Final Rules

    As discussed in more detail above, we are adopting new rule and 
form amendments to implement Section 1503 of the Act. Section 1503(a) 
requires issuers that are operators, or that have a subsidiary that is 
an operator, of a coal or other mine to disclose in their periodic 
reports filed with the Commission information regarding specified 
health and safety violations, orders and citations, related assessments 
and legal actions, and mining-related fatalities. Section 1503(b) of 
the Act

[[Page 81777]]

mandates the filing of a Form 8-K disclosing the receipt of certain 
orders and notices from MSHA.
    We are adopting new Items 104 and 601(b)(95) of Regulation S-K and 
amending Forms 10-Q, 10-K, 20-F and 40-F under the Exchange Act to 
implement the disclosure requirement set forth in Section 1503(a) of 
the Act. We are adopting new Item 1.04 of Form 8-K to implement the 
requirement of Section 1503(b) of the Act. In addition, we are amending 
General Instruction I.A.3(b) of Securities Act Form S-3.
    Issuers are currently required to comply with the provisions of 
Section 1503 of the Act; therefore, the Act has already increased the 
burdens and costs for issuers by requiring the disclosure set forth in 
Sections 1503(a) and (b) of the Act. We note that Section 1503 of the 
Act imposed the disclosure requirements set forth in Sections 1503(a) 
and (b) of the Act, regardless of whether the Commission adopts rules 
to implement those provisions. Our amendments incorporate the Act's 
requirements into Regulation S-K and related forms.
    The disclosure requirement of Section 1503(a)(1)(G) of the Act, 
which requires disclosure of mining-related fatalities, overlaps to 
some extent with a disclosure requirement under MSHA rules. MSHA 
requires mine operators to report immediately any death of an 
individual at a mine,\200\ which MSHA then makes available to the 
public through its data retrieval system on its Web site, http://www.msha.gov. MSHA's disclosure requirement applies to all mine 
operators under MSHA's jurisdiction, while the disclosure requirement 
of Section 1503(a)(1)(G) of the Act requires reporting by a subset of 
that group, specifically, issuers that are required to file reports 
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange 
Act and that are operators (or have a subsidiary that is an operator) 
of a coal or other mine. We note that, while there is some overlap, the 
disclosure requirement of Section 1503(a)(1)(G) of the Act is currently 
in effect by operation of the statute, and the amendments we are 
adopting simply incorporate the Act's requirements into our rules and 
forms. We believe our rules must incorporate this provision of the Act 
in order to be consistent with the Act.
---------------------------------------------------------------------------

    \200\ See 30 CFR 50.10.
---------------------------------------------------------------------------

    Most of the information called for by the new disclosure 
requirements is publicly disclosed by MSHA and readily available to 
issuers, who receive notices, orders and citations directly from MSHA 
and can also access the information via MSHA's data retrieval system. 
Information regarding pending legal actions is known to issuers, and 
certain information about orders and citations that are in contest 
before the FMSHRC is also available via MSHA's data retrieval system. 
Further, as noted above, the disclosure item for periodic reports 
requiring disclosure of mining-related fatalities is already subject to 
a collection of information under MSHA regulations,\201\ and fatality 
information also is made public via MSHA's data retrieval system. Our 
amendments incorporate the Act's requirements into Regulation S-K and 
related forms.
---------------------------------------------------------------------------

    \201\ 30 CFR 50.10 and 50.20.
---------------------------------------------------------------------------

    We anticipate that new Items 104 and 601(b)(95) of Regulation S-K 
will increase the disclosure burdens for annual reports on Form 10-K 
and quarterly reports on Form 10-Q that existed prior to enactment of 
the Act. Because Regulation S-K does not apply directly to Forms 20-F 
and 40-F,\202\ we are amending those forms to include the same 
disclosure requirements as those applicable to issuers that are not 
foreign private issuers, and therefore we anticipate that the 
disclosure burdens that existed prior to the enactment of the Act for 
annual reports on Forms 20-F and 40-F will increase.\203\ We anticipate 
that new Item 1.04 of Form 8-K will increase the disclosure burden that 
existed prior to enactment of the Act for current reports on Form 8-K 
by requiring issuers to file a Form 8-K upon receipt of three types of 
notices or orders from MSHA relating to mine health and safety concerns 
and specifying the information required about the orders or notices 
required to be disclosed.
---------------------------------------------------------------------------

    \202\ While Form 20-F may be used by any foreign private issuer, 
Form 40-F is only available to a Canadian issuer that is eligible to 
participate in the U.S.-Canadian Multijurisdictional Disclosure 
System.
    \203\ See new Item 16H under Part II of Form 20-F and paragraph 
(16) to General Instruction B of Form 40-F.
---------------------------------------------------------------------------

    Compliance with the amendments by affected issuers will be 
mandatory. Responses to the information collections will not be kept 
confidential, and there will be no mandatory retention period for the 
information disclosed.

C. Summary of Comment Letters and Revisions to Proposals

    In the Proposing Release, we requested comment on the PRA analysis. 
We received one comment letter that addressed our overall burden 
estimates for the proposed amendments.\204\ The commentator stated its 
belief that the estimates included in the Proposing Release were on the 
low end of the scale. The commentator noted its view that, due to the 
number and variety of operations that must be included in the reports 
and the corporate structure and segregation of responsibilities that 
are required in a multinational organization with a number of 
individual operating subsidiaries, the estimate of burden hours to 
manage, assemble, track, verify and prepare the reports should be 
higher. In the commentator's experience, the necessary internal 
procedures and controls to accurately assemble, track and report the 
Section 1503 mine safety information and the actual hourly burden alone 
would be 10 to 15 times the estimate made by the Commission, and the 
outside professional burden would likewise be several orders of 
magnitude greater than the estimate.
---------------------------------------------------------------------------

    \204\ See letter from Rio Tinto.
---------------------------------------------------------------------------

    After consideration of the comment received, we have increased the 
hours and costs from the proposal, although we have not increased such 
estimates by the magnitude suggested by the commentator, taking into 
account several substantive modifications we have made to the proposed 
amendments. We are adopting final rules that in some respects are less 
burdensome than the proposals. We have simplified the reporting of 
information with respect to proposed assessments of penalties and 
pending legal actions, and we are not adopting the proposed additional 
disclosure item. We also have changed the time period requirement for 
periodic reporting in a manner that will lessen the burden for issuers 
by requiring disclosure only for the period covered by the report. 
Therefore, we have adjusted our estimates to reflect a decrease in 
hours and costs from the proposal, but also reflecting 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 form amendments will increase the 
burdens and costs for issuers subject to the amendments. For purposes 
of the PRA, in the Proposing Release we estimated the total annual 
increase in paperwork burden for all affected companies to comply with 
the proposed collection of information requirements to be approximately 
1,677 hours of company personnel time and approximately $263,500 for 
the services of outside professionals. These estimates included the 
time and the cost of implementing disclosure controls and procedures, 
preparing and reviewing disclosure, filing documents and retaining 
records.

[[Page 81778]]

As discussed above, as a result of the changes we have made from the 
proposals, and taking into consideration the comment received, we are 
increasing the total PRA burden and cost estimates that we originally 
submitted to OMB in connection with the proposed amendments. We 
estimate the annual incremental paperwork burden for all companies to 
prepare the disclosure required under our rule amendments to be 
approximately 5,775 hours of company personnel time and approximately 
$1,090,000 for the services of outside professionals.
    In deriving our new estimates, we assume that:
     For Forms 10-K, 10-Q and 8-K, an issuer incurs 75% of the 
annual burden required to produce each form, and outside firms, 
including legal counsel, accountants and other advisors retained by the 
issuer, incur 25% of the annual burden required to produce the form at 
an average cost of $400 per hour; and
     For Forms 20-F and 40-F, a foreign private issuer incurs 
25% of the annual burden required to produce each form, and outside 
firms retained by the issuer incur 75% of the burden require to produce 
each form at an average cost of $400 per hour.
The portion of the burden carried by outside professionals is reflected 
as a cost, while the portion of the burden carried by the company 
internally is reflected in hours.
    We have based our new burden hour and cost estimates of the effect 
that the adopted rule and form amendments would have on those 
collections of information primarily on our understanding that the 
information required to be disclosed is readily available to issuers, 
and that therefore the burden imposed by the disclosure requirements is 
mainly in formatting the information in order to comply with our 
disclosure requirements and ensuring that appropriate disclosure 
controls and procedures are in place to facilitate reporting of the 
information. In this regard, we note that mine operators receive the 
relevant notices, citations and similar information directly from MSHA, 
and that issuers could also access such information via MSHA's publicly 
available data retrieval system. Information regarding pending legal 
actions is known to issuers, and certain information about orders and 
citations that are in contest before the FMSHRC is also available via 
MSHA's data retrieval system. Further, mine operators are required by 
MSHA regulations to report all fatalities to MSHA immediately, and 
information about mining-related fatalities also is made public via 
MSHA's data retrieval system. In preparing the burden hour and cost 
estimates, we took into consideration the number of issuers that filed 
reports with the Commission including information required under 
Section 1503 since its effective date.
1. Regulation S-K
    While the rule and form amendments make revisions to Regulation S-
K, the collection of information requirements for that regulation are 
reflected in the burden hours estimated for Forms 10-K and 10-Q. The 
rules in Regulation S-K do not impose any separate burden. Consistent 
with historical practice, we are retaining an estimate of one burden 
hour to Regulation S-K for administrative convenience.
2. Form 10-K
    Based on a review of companies filing under certain SICs, as well 
as a review of companies that are currently providing disclosure of 
mine safety matters in Commission filings in accordance with Section 
1503 of the Act, we estimate that, of the 13,545 Form 10-Ks filed 
annually, approximately 100 are filed by companies that operate, or 
have a subsidiary that operates, a mine subject to the Mine Act, and 
that therefore will be affected by the rule and form amendments. For 
purposes of the PRA, we assume that each such filer would have 
disclosures about mine safety matters to include in its Form 10-K, and 
that preparation of the Form 10-K disclosure would involve gathering 
the information for the fourth quarter of the fiscal year, 
consolidating it with information reported in the prior quarters of the 
fiscal year, and formatting the information for inclusion in the annual 
report. We estimate that the rule and form amendments would add 20 
burden hours to the total burden hours required to produce each Form 
10-K.
3. Form 20-F
    Based on a review of companies filing under certain SICs, as well 
as a review of companies that are currently providing disclosure of 
mine safety matters in Commission filings in accordance with Section 
1503 of the Act, we currently estimate that of the 942 Form 20-F annual 
reports filed annually by foreign private issuers, approximately 15 are 
filed by companies that operate, or have a subsidiary that operates, a 
mine subject to the Mine Act, and that therefore would be affected by 
the rule and form amendments. For purposes of the PRA, we assume that 
each such filer would have disclosures about mine safety matters to 
include in its Form 20-F. We estimate that the rule and form amendments 
would add 40 burden hours to the total burden hours required to produce 
each Form 20-F.
4. Form 40-F
    Based on a review of companies filing under certain SICs, as well 
as a review of companies that are currently providing disclosure of 
mine safety matters in Commission filings in accordance with Section 
1503 of the Act, we currently estimate that of the 205 Form 40-F annual 
reports filed annually by foreign private issuers, approximately 15 are 
filed by companies that operate, or have a subsidiary that operates, a 
mine subject to the Mine Act, and that therefore would be affected by 
the rule and form amendments. For purposes of the PRA, we assume that 
each such filer would have disclosures about mine safety matters to 
include in its Form 40-F. As with Form 20-F, we estimate that the rule 
and form amendments would add 40 burden hours to the total burden hours 
required to produce each Form 40-F annual report.
5. Form 10-Q
    Based on a review of companies filing under certain SICs, as well 
as a review of companies that are currently providing disclosure of 
mine safety matters in Commission filings in accordance with Section 
1503 of the Act, we estimate that, of the 32,462 Form 10-Qs filed 
annually, approximately 300 are filed by companies that operate, or 
have a subsidiary that operates, a mine subject to the Mine Act, and 
that therefore would be affected by the rule and form amendments.\205\ 
For purposes of the PRA, we assume that each such filer would have 
disclosures about mine safety matters to include in each Form 10-Q. We 
further estimate that the rule and form amendments would add 15 burden 
hours to the total burden hours required to produce each Form 10-Q.
---------------------------------------------------------------------------

    \205\ We estimate that approximately 100 companies with a Form 
10-Q filing obligation would be affected by the proposed rule and 
form amendments. Each such company would file three quarterly 
reports on Form 10-Q per year. 100 companies x 3 Forms 10-Q per 
year=300 Forms 10-Q.
---------------------------------------------------------------------------

6. Form 8-K
    We estimate that companies annually file 116,860 Form 8-Ks. Only 
companies that are not foreign private issuers and are operators, or 
have subsidiaries that are operators, of mines subject to the Mine Act 
are required to comply with the new Form 8-K

[[Page 81779]]

requirement. For purposes of the PRA, we estimate that there will be 
approximately 100 Form 8-K filers under new Item 1.04, which is based 
on our estimate of the number of Form 10-K filers that operate, or have 
a subsidiary that operates, a mine subject to the Mine Act, and that 
therefore would be affected by the rule and form amendments. In 
addition, we understand that the triggering events for Form 8-K filing 
set forth in Section 1503(b)(2)--the receipt of written notice from 
MSHA that the coal or other mine has a pattern of violations or the 
potential to have such a pattern--are relatively rare, while the 
triggering event set forth in Section 1503(b)(1)--the receipt of an 
imminent danger order--is more common.\206\ For purposes of this 
calculation, we assume that each potential filer under Item 1.04 of 
Form 8-K would file four Forms 8-K per year under new Item 1.04 and we 
estimate that the amendments to Form 8-K would add 2 burden hours to 
the total burden hours required to produce each Form 8-K.
---------------------------------------------------------------------------

    \206\ See U.S. Department of Labor, Office of Inspector General, 
In 32 Years MSHA Has Never Successfully Exercised Its Pattern of 
Violations Authority, Report Number 05-10-005-06-001 (Sept. 29, 
2010). According to data available on MSHA's Web site, 549, 630 and 
562 imminent danger orders under Section 107(a) were issued during 
fiscal 2011, 2010 and 2009, respectively. See Violations Data Set 
(as of December 9, 2011), available at http://www.msha.gov/OpenGovernmentData/OGIMSHA.asp (on file with the Division of 
Corporation Finance). Note that this number includes all imminent 
danger orders issued to all companies subject to MSHA's 
jurisdiction, not only to reporting companies that are subject to 
the disclosure requirements of Section 1503 of the Act.
---------------------------------------------------------------------------

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

    The table below illustrates the total incremental annual compliance 
burden of the collection of information in hours and in cost under the 
amendments for annual reports, quarterly reports and current reports on 
Form 8-K under the Exchange Act (Table 1). There is no change to the 
estimated burden of the collection of information under Regulation S-K 
because the burdens that Regulation S-K imposes are reflected in our 
revised estimates for the forms. The burden estimates were calculated 
by multiplying the estimated number of annual responses by the 
estimated average number of hours it would take a company to prepare 
and review the new disclosure requirements.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Current                                                         Current        Increase in       Proposed
                  Form                      annual    Current burden    Increase in      Proposed       professional     professional     professional
                                           response        hours       burden hours    burden hours      costs  ($)       costs  ($)       costs  ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-K...................................       13,545      21,361,898           1,500      21,363,398     2,848,253,000         200,000     2,848,453,000
20-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        26,440,500
10-Q...................................       32,462       4,559,793           3,375       4,563,168       607,972,400         450,000       608,422,400
8-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 form amendments discussed in this 
release to implement the disclosure requirements set forth in Section 
1503 of the Act. Section 1503(a) of the Act requires issuers that are 
operators, or that have a subsidiary that is an operator, of a coal or 
other mine to disclose in their periodic reports filed with the 
Commission information regarding specified health and safety 
violations, orders and citations, related assessments and legal 
actions, and mining-related fatalities. Section 1503(b) of the Act 
mandates the filing of a Form 8-K disclosing the receipt of certain 
orders and notices from the Mine Safety and Health Administration.
    As discussed in detail above, the disclosure requirements set forth 
in Section 1503 of the Act refer to and are based on the safety and 
health requirements applicable to mines under the Mine Act and 
administered by MSHA. MSHA inspectors issue citations, orders and 
decisions directly to mine operators during the course of inspections 
and MSHA assesses and collects civil monetary penalties for violations. 
Mine operators receive the relevant notices, citations and similar 
information directly from MSHA, and this information is publicly 
available on MSHA's data retrieval system on its Web site on a mine-by-
mine basis.\207\ Information regarding pending legal actions is known 
to issuers, and certain information about orders and citations that are 
in contest before the FMSHRC is also available via MSHA's data 
retrieval system. Further, mine operators are required by MSHA 
regulations to report all fatalities to MSHA immediately, and 
information about mining-related fatalities also is made public via 
MSHA's data retrieval system. Therefore, we believe most of the 
information required to be disclosed under Section 1503 of the Act and 
our final rules is readily available to issuers. Further, because the 
disclosure requirements set forth in Section 1503 are currently in 
effect, we assume that issuers have already developed the necessary 
controls and procedures to review and prepare the information required 
by Section 1503 of the Act for filing with the Commission.
---------------------------------------------------------------------------

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

    We are adopting amendments to Form 10-K, Form 10-Q, Form 20-F and 
Form 40-F to provide for the disclosure required by Section 1503(a) of 
the Act. New Item 104 of Regulation S-K, new Item 16H of Form 20-F and 
new Paragraph (16) of General Instruction B of Form 40-F detail the 
information to be disclosed in accordance with Section 1503(a) of the 
Act, and the amendment to Item 601 of Regulation S-K sets forth the 
exhibit requirement for Form 10-K and Form 10-Q for the information 
required to be disclosed under Item 104 of Regulation S-K. We are also 
adopting amendments to Form 8-K to add new Item 1.04 to implement the 
requirement imposed by Section 1503(b) of the Act. Finally, we are 
amending General Instruction I.A.3.(b) of Form S-3 to add new 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 comment letters addressing the cost-benefit 
analysis included in the Proposing Release. The Commission is sensitive 
to the costs and benefits that will be imposed by the rule and form 
amendments. The discussion below focuses on the costs and benefits of 
the decisions made by the Commission to fulfill the mandates of the 
Act, rather than the costs and benefits of the mandates of the Act 
itself. However, to the extent that the Commission helps achieve the 
benefits intended by the

[[Page 81780]]

Act, the two types of benefits are not entirely separable.
    The final rule adheres closely to the statutory mandate, which is 
already in effect. We have determined not to adopt the proposed 
requirements to provide additional disclosure in periodic reports 
addressing the categories of violations, orders or citations disclosed 
in response to the Section 1503(a) disclosure requirement, or total 
dollar values of proposed penalty assessments from MSHA outstanding as 
of the end of a reporting period. We are adopting a requirement to 
disclose the total number of legal actions involving each mine that 
were pending before the FMSHRC as of the last day of the reporting 
period, the aggregate number of legal actions instituted and the number 
resolved during the reporting period, and the numbers of such legal 
actions in specified categories, rather than the more burdensome 
proposed requirement to provide more detailed descriptions of legal 
actions pending before the FMSHRC and developments material to 
previously reported pending legal actions. As a consequence, we believe 
that the vast majority of the costs and benefits of our final rules are 
attributable to the provisions of Section 1503.

B. Benefits

    The amended rules we are adopting today are intended to implement 
the requirements of Section 1503 of the Act. Our Regulation S-K and 
form amendments implement the requirements of the Act by reiterating 
the disclosure items listed in Section 1503, which are currently in 
effect. Our rule and form amendments specify for issuers how, in what 
form, and when to report the mine safety information required by the 
Act. These rules are designed to facilitate compliance with the new 
statutory requirements. We believe this should simplify the disclosure 
obligation, promote comparability and consistency of disclosure across 
issuers and time periods, and make the information more accessible for 
users, which will benefit investors in their consideration of 
information about issuers' mine health and safety matters.
    We believe that the requirement to disclose the total number of 
legal actions involving each mine that were pending before the FMSHRC 
as of the last day of the reporting period, the aggregate number of 
legal actions instituted, the number resolved during the reporting 
period and the numbers of legal actions in specified categories will 
provide useful information to users about overall developments in legal 
actions and the extent of the mine operators' involvement in legal 
actions.
    Our amendment to Form 8-K requires additional disclosure beyond 
that specifically designated by Section 1503(b) of the Act by 
specifying the information required about the orders or notices 
required to be disclosed, and specifying a four business day filing 
deadline for Forms 8-K filed under new Item 1.04. Our amendment to Form 
8-K specifying that the form is to be filed within four business days 
of receipt of the order or notice designated under Section 1503(b) of 
the Act will provide issuers and investors with certainty about the 
timing of that disclosure requirement.

C. Costs

    The vast majority of the costs resulting from the disclosures 
required by Section 1503 of the Act arise whether or not we adopt rules 
to implement the Section. Moreover, the information required to be 
disclosed under Section 1503 is already subject to an extensive 
recordkeeping regime under MSHA and, for the most part, is readily 
available to issuers via MSHA's data retrieval system. Certain 
information, such as information regarding pending legal actions and 
mining-related fatalities, is known to issuers, although they may have 
had to adopt new procedures to capture and report the information in 
order to comply with Section 1503. The primary costs to result from 
this rulemaking are costs associated with the formatting and filing of 
the information. We believe that there are no significant incremental 
costs imposed as a result of our codification of the Section 1503 
requirements.\208\
---------------------------------------------------------------------------

    \208\ For purposes of the PRA, we estimate the total cost of the 
disclosure to be approximately 5,775 hours of company personnel time 
and approximately $1,090,000 for the services of outside 
professionals. However, this amount reflects the costs associated 
with the disclosure requirement set forth in Section 1503 of the 
Act. We do not believe our rules, which implement Section 1503, 
impose any additional costs beyond those imposed by the statute.
---------------------------------------------------------------------------

V. Consideration of Impact on the Economy, Burden on Competition and 
Promotion of Efficiency, Competition and Capital Formation

    Section 23(a)(2) of the Exchange Act \209\ requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. In addition, Section 23(a)(2) 
prohibits us from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act.
---------------------------------------------------------------------------

    \209\ 15 U.S.C. 78w(a).
---------------------------------------------------------------------------

    Section 2(b) \210\ of the Securities Act and Section 3(f) \211\ of 
the Exchange Act require us, when engaging in rulemaking where we are 
required to consider or determine whether an action is necessary or 
appropriate in the public interest, to consider, in addition to the 
protection of investors, whether the action will promote efficiency, 
competition, and capital formation.
---------------------------------------------------------------------------

    \210\ 15 U.S.C. 77b(b).
    \211\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    We did not receive any comment letters addressing the discussion of 
these issues included in the Proposing Release. The amendments we are 
adopting will implement the requirements of Section 1503 of the Act, 
which imposed the substance of the disclosure requirements set forth in 
our new rules. We are not imposing any additional requirements in our 
rulemaking that will impose a burden on competition or have a 
significant impact on capital formation.
    We believe that the rule and form amendments we are adopting will 
provide direction and consistency as to how, in what form, and when to 
report the relevant information. We believe that the specifications in 
the rulemaking will improve the efficiency of the reporting process for 
issuers and provide for a more efficient and effective review of the 
information by investors.
    The loss of eligibility by an issuer to use Form S-3 could restrict 
the ability of the company to raise capital or increase an issuer's 
costs relating to capital raising, and may be a disproportionately 
large negative consequence of an untimely filing of a Form 8-K. To 
address this potential burden, we are revising the eligibility rules 
under Form S-3 so that an untimely filing of a report under new Item 
1.04 of Form 8-K would not result in a loss of eligibility to use that 
form.

VI. Final Regulatory Flexibility Act Analysis

    This Final Regulatory Flexibility Analysis has been prepared in 
accordance with the Regulatory Flexibility Act.\212\ It relates to 
revisions to Regulation S-K and forms under the Securities Act and the 
Exchange Act regarding disclosure about mine safety.
---------------------------------------------------------------------------

    \212\ 5 U.S.C. 601.
---------------------------------------------------------------------------

A. Reasons for, and Objectives of, the Proposed Action

    We are adopting rule amendments to implement the disclosure 
requirements set forth in Section 1503 of the Act.

[[Page 81781]]

Section 1503(a) of the Act requires issuers that are operators, or that 
have a subsidiary that is an operator, of a coal or other mine to 
disclose in their periodic reports filed with the Commission 
information regarding specified health and safety violations, orders 
and citations, related assessments and legal actions, and mining-
related fatalities. Section 1503(b) of the Act mandates the filing of a 
Form 8-K disclosing the receipt of certain orders and notices from 
MSHA.

B. Significant Issues Raised by Public Comments

    In the Proposing Release, we requested comment on any aspect of the 
Initial Regulatory Flexibility Analysis (``IRFA''), including how the 
proposed amendments could achieve their objective while lowering the 
burden on small entities, the number of small entities that would be 
affected by the proposed amendments, the nature of the potential impact 
of the proposed amendments on small entities discussed in the analysis, 
and how to quantify the impact of the proposed amendments. We did not 
receive comments specifically addressing the IRFA. However, several 
commentators addressed aspects of the proposed rule amendments that 
could potentially affect small entities. In particular, several 
commentators stated their belief that smaller companies should not be 
exempted from all or part of the amendments,\213\ while only one 
commentator urged that we adopt a modified reporting system for smaller 
companies.\214\
---------------------------------------------------------------------------

    \213\ See letters from AFL-CIO, CalPERS, CalSTRS, EARTHWORKS, 
NMA, Rio Tinto, SIF, Trillium and UMWA.
    \214\ See letter from Estess.
---------------------------------------------------------------------------

C. Small Entities Subject to the Final Amendments

    The amendments will affect some companies that are small entities. 
The Regulatory 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'' for purposes of the Regulatory Flexibility 
Act for each of the types of entities regulated by the Commission. 
Securities Act Rule 157 \216\ and Exchange Act Rule 0-10(a) \217\ 
define a company, other than an investment company, to be a ``small 
business'' or ``small organization'' if it had total assets of $5 
million or less on the last day of its most recent fiscal year. The new 
rules will affect small entities that (i) are required to file reports 
under Section 13(a) or 15(d) of the Exchange Act and (ii) operate, or 
have a subsidiary that operates, a coal or other mine that is subject 
to the Mine Act, and therefore are required to provide mine safety 
disclosure under Section 1503 of the Act. We estimate that there are 
approximately 25 companies that would currently be required to provide 
the Section 1503 disclosure and that may be considered small entities. 
We note that there are a significant number of small entities that are 
exploration stage mining companies that would be required to provide 
the Section 1503 disclosure if such companies were to become operators, 
or have subsidiaries that become operators, of coal or other mines 
subject to the Mine Act.
---------------------------------------------------------------------------

    \215\ 5 U.S.C. 601(6).
    \216\ 17 CFR 230.157.
    \217\ 17 CFR 240.0-10(a).
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The disclosure requirements are intended to implement the 
disclosure requirements set forth in Section 1503 of the Act. These 
amendments require small entities that are required to file reports 
under Section 13(a) or 15(d) of the Exchange Act and operate, or have a 
subsidiary that operates, a coal or other mine to provide mine safety 
disclosure under applicable rules and forms.
    Small entities will be required to include the disclosure in their 
annual report on Form 10-K, Form 20-F or Form 40-F and, if applicable, 
quarterly report on Form 10-Q and current report on Form 8-K. We are 
amending Form 10-K, Form 10-Q, Form 20-F and Form 40-F to require the 
disclosure required by Section 1503(a) of the Act. New Item 104 of 
Regulation S-K, new Item 16H of Form 20-F and new Paragraph (16) of 
General Instruction B of Form 40-F detail the information to be 
disclosed in accordance with Section 1503(a) of the Act, and the 
amendment to Item 601 of Regulation S-K sets forth the exhibit 
requirement for Form 10-K and Form 10-Q for the information required to 
be disclosed under new Item 104 of Regulation S-K. We are also adopting 
amendments to Form 8-K to add new Item 1.04 to implement the 
requirement imposed by Section 1503(b) of the Act. Finally, we are 
amending General Instruction I.A.3.(b) of Form S-3 to add new 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 on Small Entities

    The Regulatory Flexibility Act directs us to consider alternatives 
that would accomplish our stated objectives, while minimizing any 
significant adverse impact on small entities. In connection with the 
disclosure amendments, we considered the following alternatives:
    (1) Establishing differing compliance or reporting requirements or 
timetables which take into account the resources available to smaller 
entities;
    (2) Exempting smaller entities from coverage of the disclosure 
requirements, or any part thereof;
    (3) The clarification, consolidation, or simplification of 
disclosure for small entities; and
    (4) Use of performance standards rather than design standards.
    Section 1503 of the Act requires all entities, including small 
entities, that are required to file reports under Section 13(a) or 
15(d) of the Exchange Act and operate, or have a subsidiary that 
operates, a coal or other mine to provide mine safety disclosure under 
applicable rules and forms. These requirements apply without regard to 
whether we adopt rules to implement them. The amendments implement the 
disclosure requirements set forth in Section 1503 of the Act. Given the 
statutory disclosure requirements in Section 1503 of the Act, the Act 
does not appear to contemplate separate compliance or reporting 
requirements for smaller entities.
    Our amendments would require clear and straightforward disclosure 
of the information required by Section 1503 of the Act. We generally 
have used design rather than performance standards in connection with 
the amendments. By specifying in the Act the disclosure required, 
Congress appears to have contemplated that consistent, comparable 
disclosure would be provided. We believe that the specific disclosure 
requirements in the amendments will promote consistent and comparable 
disclosure among all companies that operate, or have a subsidiary that 
operates, a coal or other mine. Further, based on our past experience, 
we believe that specific disclosure requirements for this information 
would be more useful to investors than would a performance standard. 
However, we note that, although we encourage tabular presentation, we 
are not adopting a particular presentation requirement for the 
disclosure, so that each issuer has flexibility to adopt a presentation 
it believes is appropriate for its disclosure. We proposed additional 
disclosure requirements that would have given greater context to the 
information required to be disclosed by Section 1503. After further 
consideration, we are not requiring such additional

[[Page 81782]]

disclosure, but issuers are permitted to include additional disclosure 
if they choose to do so.
    Currently, small entities are subject to some different compliance 
or reporting requirements under Regulation S-K and the amendments would 
not affect these requirements. The disclosure requirements will apply 
to small entities to the same extent as larger issuers. We do not 
believe these disclosures will create a significant new burden, and we 
believe this approach is consistent with the requirements of the Act.

VII. Statutory Authority and Text of The Amendments

    The amendments contained in this release are being adopted under 
the authority set forth in Sections 7, 10, and 19(a) of the Securities 
Act; Sections 12, 13, 15 and 23 of the Exchange Act and Section 1503 of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act.

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

    Reporting and recordkeeping requirements, Securities.

Text of The Amendments

    For the reasons set out in the preamble, the Commission amends 
title 17, chapter II, of the Code of Federal Regulations as follows:

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

0
1. The authority citation for part 229 continues 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 7201 et seq.; and 18 U.S.C. 1350, 
unless otherwise noted.
* * * * *

0
2. Section 229.104 is added to read as follows:


Sec.  229.104  (Item 104) Mine safety disclosure.

    (a) A registrant that is the operator, or that has a subsidiary 
that is an operator, of a coal or other mine shall provide the 
information specified below for the time period 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 the mine and 
disclose:
    (i) The total number of violations of mandatory health or safety 
standards that could significantly and substantially contribute to the 
cause and effect of a coal or other mine safety or health hazard under 
section 104 of the Federal Mine Safety and Health Act of 1977 (30 
U.S.C. 814) for which the operator received a citation from the Mine 
Safety and Health Administration.
    (ii) The total number of orders issued under section 104(b) of such 
Act (30 U.S.C. 814(b)).
    (iii) The total number of citations and orders for unwarrantable 
failure of the mine operator to comply with mandatory health or safety 
standards under section 104(d) of such Act (30 U.S.C. 814(d)).
    (iv) The total number of flagrant violations under section 
110(b)(2) of such Act (30 U.S.C. 820(b)(2)).
    (v) The total number of imminent danger orders issued under section 
107(a) of such Act (30 U.S.C. 817(a)).
    (vi) The total dollar value of proposed assessments from the Mine 
Safety and Health Administration under such Act (30 U.S.C. 801 et 
seq.).
    Instruction to Item 104(a)(1)(vi): Registrants must provide the 
total dollar value of assessments proposed by MSHA relating to any type 
of violation during the period covered by the report, regardless of 
whether the registrant has challenged or appealed the assessment.
    (vii) The total number of mining-related fatalities.
    Instruction to Item 104(a)(1)(vii): Registrants must report all 
fatalities occurring at a coal or other mine during the period covered 
by the report unless the fatality has been determined by MSHA to be 
unrelated to mining activity.
    (2) A list of coal or other mines, of which the registrant or a 
subsidiary of the registrant is an operator, that receive written 
notice from the Mine Safety and Health Administration of:
    (i) A pattern of violations of mandatory health or safety standards 
that 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 such Act (30 U.S.C. 814(e)); or
    (ii) The potential to have such a pattern.
    (3) Any pending legal action before the Federal Mine Safety and 
Health Review Commission involving such coal or other mine.
    Instruction to Item 104(a)(3): The registrant must report the total 
number of legal actions that were pending before the Federal Mine 
Safety and Health Review Commission as of the last day of the time 
period covered by the report, as well as the aggregate number of legal 
actions instituted and the aggregate number of legal actions resolved 
during the reporting period. With respect to the total number of legal 
actions that were pending 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 also report the number of such legal 
actions that are:
    1. Contests of citations and orders referenced in Subpart B of 29 
CFR part 2700;
    2. Contests of proposed penalties referenced in Subpart C of 29 CFR 
part 2700;
    3. Complaints for compensation referenced in Subpart D of 29 CFR 
part 2700;
    4. Complaints of discharge, discrimination or interference 
referenced in Subpart E of 29 CFR part 2700;
    5. Applications for temporary relief referenced in Subpart F of 29 
CFR part 2700; and
    6. Appeals of judges' decisions or orders to the Federal Mine 
Safety and Health Review Commission referenced in Subpart H of 29 CFR 
part 2700.
    (b) Definitions. For purposes of this Item:
    (1) The term coal or other mine means a coal or other mine, as 
defined in section 3 of the Federal Mine Safety and Health Act of 1977 
(30 U.S.C. 802), that is 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 the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 802).
    (3) The term subsidiary has the meaning given the term in Exchange 
Act Rule 12b-2 (17 CFR 240.12b-2).
    Instructions to Item 104:
    1. The registrant must provide the information required by this 
Item as specified by Sec.  229.601(b)(95) of this chapter. In addition, 
the registrant must provide a statement, in an appropriately captioned 
section of the periodic report, that the information concerning mine 
safety violations or other regulatory matters required by Section 
1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act and this Item is included in exhibit 95 to the periodic report.
0
2. When the disclosure required by this item is included in an exhibit 
to an annual report on Form 10-K, the information is to be provided for 
the registrant's fiscal year.


[[Page 81783]]



0
3. Amend Sec.  229.601 by revising paragraphs (a)(36) through (a)(98) 
in the exhibit table in paragraph (a), and adding paragraph (b)(95), to 
read as follows:


Sec.  229.601  (Item 601) Exhibits.

    (a) * * *
Exhibit Table
* * * * *

                                                                      Exhibit Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Securities Act Forms                                 Exchange Act Forms
                                                 -------------------------------------------------------------------------------------------------------
                                                                    S-4                                     F-4             8-K
                                                    S-1     S-3     \1\     S-8    S-11     F-1     F-3     \1\     10      \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 Exhibit............  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......       X       X
(96) through (98) [Reserved]....................  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ An 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-4 to 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 elected under Form S-4 or F-4,
  would not require such company to provide such exhibit if it were registering a primary offering.
\2\ A 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 pertains to the
  departure of a director, only the exhibit described in paragraph (b)(17) of this section need be filed. A required exhibit may be incorporated by
  reference from a previous filing.

* * * * *
    (b) * * *
    (95) Mine Safety Disclosure Exhibit. A registrant that is an 
operator, or that has a subsidiary that is an operator, of a coal or 
other mine must provide the information required by Item 104 of 
Regulation S-K (Sec.  229.104 of this chapter) in an exhibit to its 
Exchange Act annual or quarterly report. For purposes of this Item:
    (1) The term coal or other mine means a coal or other mine, as 
defined in section 3 of the Federal Mine Safety and Health Act of 1977 
(30 U.S.C. 802), that is 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 the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 802).
    (3) The term subsidiary has the meaning given the term in Exchange 
Act Rule 12b-2 (17 CFR 240.12b-2).
* * * * *

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

0
4. The authority citation for part 239 continues to read in part as 
follows:

    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, 404 80a-2(a), 80a-3, 
80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29, 80a-30, and 
80a-37, unless otherwise noted.
* * * * *

0
5. Amend Form S-3 (referenced in Sec.  239.13) by revising General 
Instruction I.A.3.(b) to read as follows:

    Note: The text of Form S-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.



FORM S-3--REGISTRATION STATEMENT UNDER THE SECURITIES 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 the twelve calendar months and any portion of a month 
immediately preceding the filing of the registration statement, other 
than a report that is required solely pursuant 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 (Sec.  
249.308 of this chapter). If the registrant has used (during the twelve 
calendar months and any portion of a month immediately preceding the 
filing of the registration statement) Rule 12b-25(b) (Sec.  240.12b-
25(b) of this chapter) under the Exchange Act with respect to a report 
or a portion of a report, that report or portion thereof has actually 
been filed within the time period prescribed by that rule.
* * * * *

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
6. The authority citation for part 249 continues to read in part as 
follows:

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

* * * * *

0
7. Amend Form 20-F (referenced in Sec.  249.220f) by adding Item 16H, 
and adding Instruction 16 to the Instructions as to Exhibits, of Form 
20-F, to read as follows:

    Note: The text of Form 20-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.



FORM 20-F

* * * * *


Item 16H.  Mine Safety Disclosure

    If the registrant is the operator, or has a subsidiary that is an 
operator, of a coal or other mine, include the information set forth 
below for the time period covered by the annual report. In an 
appropriately captioned section of the annual report, provide a 
statement that the information concerning mine safety violations or 
other regulatory matters required by Section 1503(a) of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act and this Item is 
included in a specified exhibit to the annual report. Include the 
following information in an exhibit to the annual report.
    (a) For each coal or other mine of which the registrant or a 
subsidiary of the registrant is an operator, identify the mine and 
disclose:
    (i) The total number of violations of mandatory health or safety 
standards that could significantly and substantially contribute to the 
cause and effect of a coal or other mine safety or health hazard under 
section 104 of the Federal Mine Safety and Health Act of 1977 (30 
U.S.C. 814) for which the operator received a citation from the Mine 
Safety and Health Administration.

[[Page 81784]]

    (ii) The total number of orders issued under section 104(b) of such 
Act (30 U.S.C. 814(b)).
    (iii) The total number of citations and orders for unwarrantable 
failure of the mine operator to comply with mandatory health or safety 
standards under section 104(d) of such Act (30 U.S.C. 814(d)).
    (iv) The total number of flagrant violations under section 
110(b)(2) of such Act (30 U.S.C. 820(b)(2)).
    (v) The total number of imminent danger orders issued under section 
107(a) of such Act (30 U.S.C. 817(a)).
    (vi) The total dollar value of proposed assessments from the Mine 
Safety and Health Administration under such Act (30 U.S.C. 801 et 
seq.).
    Instruction to Item 16H(a)(vi): Registrants must provide the total 
dollar value of assessments proposed by MSHA relating to any type of 
violation during the period covered by the report, regardless of 
whether the registrant has challenged or appealed the assessment.
    (vii) The total number of mining-related fatalities.
    Instruction to Item 16H(a)(vii): Registrants must report all 
fatalities occurring at a coal or other mine during the period covered 
by the report unless the fatality has been determined by MSHA to be 
unrelated to mining activity.
    (b) A list of coal or other mines, of which the registrant or a 
subsidiary of the registrant is an operator, that receive written 
notice from the Mine Safety and Health Administration of:
    (i) A pattern of violations of mandatory health or safety standards 
that 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 such Act (30 U.S.C. 814(e)); or
    (ii) the potential to have such a pattern.
    (c) Any pending legal action before the Federal Mine Safety and 
Health Review Commission involving such coal or other mine.
    Instructions to Item 16H(c): The registrant must report the total 
number of legal actions that were pending before the Federal Mine 
Safety and Health Review Commission as of the last day of the time 
period covered by the report, as well as the aggregate number of legal 
actions instituted and the aggregate number of legal actions resolved 
during the reporting period. With respect to the total number of legal 
actions that were pending 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 also report the number of such legal 
actions that are (a) contests of citations and orders referenced in 
Subpart B of 29 CFR Part 2700; (b) contests of proposed penalties 
referenced in Subpart C of 29 CFR Part 2700; (c) complaints for 
compensation referenced in Subpart D of 29 CFR Part 2700; (d) 
complaints of discharge, discrimination or interference referenced in 
Subpart E of 29 CFR Part 2700; (e) applications for temporary relief 
referenced in Subpart F of 29 CFR Part 2700; and (f) appeals of judges' 
decisions or orders to the Federal Mine Safety and Health Review 
Commission referenced in Subpart H of 29 CFR Part 2700.
* * * * *

Instructions to Item 16H

    1. Item 16H only applies to annual reports, and not to registration 
statements on Form 20-F.
    2. The exhibit described in this Item must meet the requirements 
under Instruction 19 as to Exhibits of this Form.
    3. For purposes of this Item:
    a. The term coal or other mine means a coal or other mine, as 
defined in section 3 of the Federal Mine Safety and Health Act of 1977 
(30 U.S.C. 802), that is subject to the provisions of such Act (30 
U.S.C. 801 et seq.).
    b. The term operator has the meaning given the term in section 3 of 
the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 802).
    c. The term subsidiary has the meaning given the term in Exchange 
Act Rule 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 the information 
specified in Item 16H in an exhibit to its annual report on Form 20-F.
    17 through 99 [Reserved]
* * * * *

0
8. Amend Form 40-F (referenced in Sec.  249.240f) by adding Paragraph 
(16) to General Instruction B to read as follows:
* * * * *
    (16) Mine safety disclosure. If the registrant is the operator, or 
has a subsidiary that is an operator, of a coal or other mine, include 
the information set forth below for the time period covered by the 
annual report. In an appropriately captioned section of the annual 
report, provide a statement that the information concerning mine safety 
violations or other regulatory matters required by Section 1503(a) of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act and this 
Item is included in a specified exhibit to the annual report. Include 
the following information in an exhibit to the annual report.
    (a) For each coal or other mine of which the registrant or a 
subsidiary of the registrant is an operator, identify the mine and 
disclose:
    (i) The total number of violations of mandatory health or safety 
standards that could significantly and substantially contribute to the 
cause and effect of a coal or other mine safety or health hazard under 
section 104 of the Federal Mine Safety and Health Act of 1977 (30 
U.S.C. 814) for which the operator received a citation from the Mine 
Safety and Health Administration.
    (ii) The total number of orders issued under section 104(b) of such 
Act (30 U.S.C. 814(b)).
    (iii) The total number of citations and orders for unwarrantable 
failure of the mine operator to comply with mandatory health or safety 
standards under section 104(d) of such Act (30 U.S.C. 814(d)).
    (iv) The total number of flagrant violations under section 
110(b)(2) of such Act (30 U.S.C. 820(b)(2)).
    (v) The total number of imminent danger orders issued under section 
107(a) of such Act (30 U.S.C. 817(a)).
    (vi) The total dollar value of proposed assessments 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 dollar value of assessments proposed by MSHA relating to any type 
of violation during the period covered by the report, regardless of 
whether the registrant has challenged or appealed the assessment.
    (vii) The total number of mining-related fatalities.
    Instruction to paragraph (16)(a)(vii): Registrants must report all 
fatalities occurring at a coal or other mine during the period covered 
by the report unless the fatality has been determined by MSHA to be 
unrelated to mining activity.
    (b) A list of coal or other mines, of which the registrant or a 
subsidiary of the registrant is an operator, that receive written 
notice from the Mine Safety and Health Administration of:
    (i) A pattern of violations of mandatory health or safety standards 
that are of such nature as could have significantly and substantially 
contributed to the cause and effect of coal or other mine health or 
safety

[[Page 81785]]

hazards under section 104(e) of such Act (30 U.S.C. 814(e)); or
    (ii) the potential to have such a pattern.
    (c) Any pending legal action before the Federal Mine Safety and 
Health Review Commission involving such coal or other mine.
    Instruction to paragraph (16)(c): The registrant must report the 
total number of legal actions that were pending before the Federal Mine 
Safety and Health Review Commission as of the last day of the time 
period covered by the report, as well as the aggregate number of legal 
actions instituted and the aggregate number of legal actions resolved 
during the reporting period. With respect to the total number of legal 
actions that were pending 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 also report the number of such legal 
actions that are (a) contests of citations and orders referenced in 
Subpart B of 29 CFR part 2700; (b) contests of proposed penalties 
referenced in Subpart C of 29 CFR part 2700; (c) complaints for 
compensation referenced in Subpart D of 29 CFR part 2700; (d) 
complaints of discharge, discrimination or interference referenced in 
Subpart E of 29 CFR part 2700; (e) applications for temporary relief 
referenced in Subpart F of 29 CFR part 2700; and (f) appeals of judges' 
decisions or orders to the Federal Mine Safety and Health Review 
Commission 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 in section 3 of the Federal Mine Safety and Health Act of 1977 
(30 U.S.C. 802), that is 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 
the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 802).
    3. The term subsidiary has the meaning given the term in Exchange 
Act Rule 12b-2 (17 CFR 240.12b-2).
    4. Instruction B(16) only applies to annual reports, and not to 
registration statements on Form 40-F.
* * * * *

0
9. Amend Form 8-K (referenced in Sec.  249.308) by adding Item 1.04 
under the caption ``Information to Be Included in the Report'' after 
the General Instructions to read as follows:

    Note: The text of Form 8-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 8-K

* * * * *

General Instructions

* * * * *

Information To Be Included in the Report

* * * * *


Item 1.04  Mine Safety--Reporting of Shutdowns and Patterns of 
Violations.

    (a) If the registrant or a subsidiary of the registrant has 
received, with respect to a coal or other mine of which the registrant 
or a subsidiary of the registrant is an operator
     an imminent danger order issued under section 107(a) of 
the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 817(a));
     a written notice from the Mine Safety and Health 
Administration that the coal or other mine has a pattern of violations 
of mandatory health or safety standards that 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 such Act (30 U.S.C. 814(e)); or
     a written notice from the Mine Safety and Health 
Administration that the coal or other mine has the potential to 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 
defined in section 3 of the Federal Mine Safety and Health Act of 1977 
(30 U.S.C. 802), that is 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 the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 802).
* * * * *

0
10. Amend Form 10-Q (referenced in Sec.  249.308a) by revising General 
Instruction H.2.b to delete the reference to Item 4, Submission of 
Matters to a Vote of Security Holders, and adding Item 4 in Part II to 
read as follows:

    Note: The text of Form 10-Q does not, and this amendment will 
not, appear in the Code of Federal Regulations.



FORM 10-Q

* * * * *

PART II

* * * * *


Item 4.  Mine Safety Disclosures * * *

    If applicable, provide a statement that the information concerning 
mine safety violations or other regulatory matters required by Section 
1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act and Item 104 of Regulation S-K (17 CFR 229.104) is included in 
exhibit 95 to the quarterly report.
* * * * *

0
11. Amend Form 10-K (referenced in Sec.  249.310) by revising General 
Instructions I(2)(c) and J(1)(e) to delete the references to Item 4, 
Submission of Matters to a Vote of Security Holders, and adding Item 4 
in Part I to read as follows:

    Note: The text of Form 10-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

FORM 10-K

* * * * *

PART I

* * * * *


Item 4.  Mine Safety Disclosures * * *

    If applicable, provide a statement that the information concerning 
mine safety violations or other regulatory matters required by Section 
1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act and Item 104 of Regulation S-K (17 CFR 229.104) is included in 
exhibit 95 to the annual report.
* * * * *

    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


