A Small Entity Compliance Guidei
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.
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:
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:
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.
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.