On December 21, the Securities and Exchange Commission adopted final rules (the Final Rules) implementing Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), which included disclosure requirements for operators of coal or other mines.
The Final Rules amend the SEC periodic and current reporting forms, including Forms 8-K, 10-Q and 10-K, to incorporate the disclosure requirements of Section 1503 of the Dodd-Frank Act. These disclosure requirements apply to all registrants who operate, or have a subsidiary that operates, a coal or other mine that is regulated under the Federal Mine Safety and Health Act of 1977 (the Mine Act). The specific disclosure requirements of the Final Rules only apply to mines located in the United States because those are the only mines subject to the Mine Act. However, to the extent there are safety issues with a mine located outside of the United States that are material to the registrant, disclosure may be required under existing SEC disclosure requirements.
Quarterly and Annual Reports on Forms 10-Q and 10-K
The Final Rules require the registrant to provide a statement in its Forms 10-Q and 10-K to the effect that the registrant has matters to report pursuant to Section 1503(a) of the Dodd-Frank Act and that such disclosures are included as an exhibit to the report.
Pursuant to new Item 104 under Regulation S-K, the following information must be disclosed:
- For each mine of which the registrant, or a subsidiary of the registrant, is the operator, the following:
- 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;
- 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 operator to comply with the health and safety standards set forth in 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;
- the total dollar value of proposed assessments of the Mine Safety and Health Administration (the MSHA) under the Mine Act; and
- the total number of mining-related fatalities.
- A list of all coal or other mines of which the registrant, or a subsidiary of the registrant, is an operator that receives written notice from the MSHA of:
- a pattern of violations of mandatory health or safety standards that could have significantly and
- substantially contributed to the cause and effect of a health or safety hazard under Section 104(e) of the Mine Act; or the potential to have such a pattern.
- A description of any pending legal action before the Federal Mine Safety and Health Review Commission.
Periodic Reports on Form 8-K
The Final Rules also impose a Form 8-K filing obligation if the registrant or its subsidiary receives the following orders or notices:
- imminent danger order issued under Section 107(a) of the Mine Act;
- a written notice from the MSHA that the 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 the Mine Act; or
- written notice from the MSHA that the mine has the potential to have such a pattern.
In Form 8-K, the registrant must disclose (1) the date of receipt of such order or notice; (2) the category of the order or notice; and (3) the name and location of the mine involved. While a Form 8-K must be filed within four business days of the reportable event, a late filing will not affect the registrant’s eligibility to use the short-form S-3 registration statement.
The final rules are effective on January 27, 2012.