The Securities and Exchange Commission (SEC) adopted a final rule on December 21, 2011, implementing Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act that concerns mine safety disclosure for certain companies that file reports with the SEC. The Final Rule largely adopts the Proposed Rule, although the SEC generally decided not to adopt proposals that would have expanded the required disclosure beyond what was expressly required by the Act, according to Patton Boggs, a U.S. law firm that specializes in mining (www.pattonboggs.com). The Final Rule takes effect 30 days after its publication in the Federal Register.
Section 1503 of the Act requires U.S. and foreign private issuers that are mine operators, or that have a subsidiary that is a mine operator, of a coal or other mine located in the U.S., to disclose in their annual and quarterly periodic reports filed with the SEC information regarding specified health and safety violations, orders and citations, related assessments and legal actions, and mining-related fatalities. Such information relates to compliance with the safety and health requirements under federal mine safety law, which is administered by the U.S. Mine Safety and Health Administration (MSHA).
Under the Final Rule, the following information must be filed with the SEC on a mine-by-mine basis for the time period covered by the report:
- The total number of significant and substantial (S&S) violations, for which the operator received a citation from MSHA; 104(b) orders, 104(d) citations and orders for unwarranted failure to comply, ad 110(b)(2) flagrant violations, and 107(a) imminent danger orders, and mining related fatalities;
- The total dollar value of proposed assessments from MSHA under the Mine Act;
- A list of mines that received a written notice from MSHA of a pattern of significant and substantial violations of mandatory health or safety standards, or the potential to have such patterns; and
- The legal actions that were pending before the Federal Mine Safety and Health Review Commission involving an applicable mine as of the last day of the period covered by the periodic report.
Under the Final Rule, the SEC did not include the requirement from the Proposed Rule to provide a brief description of each category of MSHA violations, orders and citations because the SEC found that it was not specifically required under the Act. The Final Rule clarified that issuers are permitted to exclude from disclosure fatalities determined by MSHA not to be mining-related and are not required to report the orders and citations of independent contractors who work at the issuers’ mines, as long as the contractors are not their subsidiaries.