Mine Safety Disclosure

A Small Entity Compliance Guideⁱ

Introduction

On December 21, 2011, the Securities and Exchange Commission adopted amendments to its disclosure rules and forms to implement Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). Section 1503 requires public companies that are operators, or have a subsidiary that is an operator, of a coal or other mine to disclose certain information about mine health and safety matters in their annual and quarterly reports filed with the Commission. It also requires such companies to file a Form 8-K when they receive certain notices and orders from the Mine Safety and Health Administration (“MSHA”).

The amendments take effect on January 27, 2012.

Annual and Quarterly Reporting Requirements

Under the new rules, companies are required to provide the information listed below for each mine they operate (or have a subsidiary that operates) that is subject to the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). Because the Mine Act applies only to mines in the United States and its territories, companies are not required to provide this information about mines in other jurisdictions. The new periodic reporting rules apply for annual reports on Form 10-K, Form 20-F and Form 40-F, and quarterly reports on Form 10-Q. Companies must provide disclosure for the quarter covered by the report in each Form 10-Q, and disclosure covering the entire fiscal year in their annual reports.

• The total number of significant and substantial violations of mandatory health or safety standards under section 104 of the Mine Act for which the operator received a citation from MSHA.
   
• 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.
   
• The dollar value of proposed assessments from MSHA under the Mine Act, regardless of whether such proposed assessments are being contested or were dismissed or reduced prior to the date of filing the periodic report.
   
• The total number of mining-related fatalities, which means all fatalities required to be reported to MSHA under its regulations, except those that have been determined by MSHA to be non-chargeable to the mining industry.
   
• A list of the mines that have 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 standards under section 104(e) of the Mine Act.
   
• A list of mines that have received written notice from MSHA of the potential to have such a pattern.
   
• Pending legal actions before the Federal Mine Safety and Health Review Commission (“FMSHRC”). This new item requires companies to disclose for each mine the number of legal actions pending before the FMSHRC 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.

With respect to the total number of legal actions pending before the FMSHRC as of the last day of the period covered by the report, companies are also required to categorize the legal actions according to the type of proceeding. The categories of proceedings are:

• 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).
   
• 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.
   
• 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.
   
• Complaints of discharge, discrimination or interference under section 105 of the Mine Act, which cover:
   
• 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
   
• 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.
   
• 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).
   
• Appeals of judges’ decisions or orders to the FMSHRC, including petitions for discretionary review and review by the FMSHRC on its own motion.

Companies are required to include brief disclosure in the body of the report, and include the detailed information in an exhibit to the filing. The new rules do not require any particular presentation for the information, but the SEC encourages companies to use tables whenever possible if doing so would make the information easier for investors to understand. The adopting release for the new rules contains an example of a possible tabular presentation that companies may use if they choose:

Form 8-K Reporting Requirement

The Dodd-Frank Act added a requirement for U.S. companies to file a Form 8-K when they receive notice from MSHA of:

• an imminent danger order under section 107(a) of the Mine Act;
   
• written notice of a pattern of violations under section 104(e) of the Mine Act; or
   
• written notice of the potential to have a pattern of such violations.

The new rules add this requirement as Item 1.04 of Form 8-K. The required Form 8-K must be filed within four business days after the company receives one of the specified orders or notices, and must include disclosure about the type of notice received, the date it was received, and the name and location of the mine involved.

A late filing of the Form 8-K will not affect a company's eligibility to use Form S-3 short-form registration.

Other resources

The adopting release for these amendments can be found on the SEC’s website at http://www.sec.gov/rules/final/2011/33-9286.pdf.

The SEC’s disclosure forms can be accessed on the Commission's website at http://www.sec.gov/about/forms/secforms.htm.

Regulation S-K can be accessed through the “Corporation Finance” section of the SEC’s website at http://www.sec.gov/divisions/corpfin/ecfrlinks.shtml.

Section 1503 of the Dodd-Frank Act can be found at http://www.gpo.gov/fdsys/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf.

Contacting the SEC

The SEC’s Division of Corporation Finance is available to assist small companies and others with questions regarding the amendments. You can contact the Division for this purpose at (202) 551-3500 or https://www.sec.gov/forms/corp_fin_interpretive.

Questions on other SEC regulatory matters concerning small companies may be directed to the Division's Office of Small Business Policy at (202) 551-3460 or through the above online form.

¹ This guide was prepared by the staff of the U.S. Securities and Exchange Commission as a "small entity compliance guide" under Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, as amended. The guide summarizes and explains rules adopted by the SEC, but is not a substitute for any rule itself. Only the rule itself can provide complete and definitive information regarding its requirements.

http://www.sec.gov/rules/final/2011/33-9286-secg.htm