Mine Safety Disclosure, 80374-80391 [2010-31941]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80374-80391]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31941]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229, 239 and 249

[Release Nos. 33-9164; 34-63548; File No. S7-41-10]
RIN 3235-AK83


Mine Safety Disclosure

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: We are proposing 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: Comments should be received on or before January 31, 2011.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (https://www.sec.gov/rules/proposed.shtml);
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number S7-41-10 on the subject line; or
     Use the Federal Rulemaking Portal (https://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number S7-41-10. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site (https://www.sec.gov/rules/proposed.shtml). Comments 
are also available for Web site viewing and copying in the Commission's 
Public Reference Room, 100 F Street, NE., Washington, DC 20549, on 
official business days between the hours of 10 a.m. and 3 p.m. All 
comments received will be posted without change; we do not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly.

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

SUPPLEMENTARY INFORMATION: We are proposing to add new Item 106 to 
Regulation S-K,\1\ amend Item 601 of Regulation S-K,\2\ and amend 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 propose to 
amend General Instruction

[[Page 80375]]

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

    Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (the ``Act'') \11\ requires issuers that are required to 
file reports with the Commission pursuant to sections 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.\12\ 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.\13\
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    \11\ Pub. L. 111-203 (July 21, 2010).
    \12\ Section 1503(a) of the Act.
    \13\ Section 1503(b) of the Act.
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    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''),\14\ which is administered by the U.S. Labor Department'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 \15\ 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 \16\ and 
inspections pursuant to miners' complaints.\17\ If violations of safety 
or health standards are found, MSHA inspectors will issue citations 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.\18\
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    \14\ 30 U.S.C. 801 et seq.
    \15\ 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 https://www.msha.gov/REGS/COMPLIAN/PPM/PMMAINTC.HTM.
    \16\ 30 U.S.C. 813(i).
    \17\ 30 U.S.C. 813(g).
    \18\ 30 U.S.C. 820. See also ``MSHA's Statutory Functions'' 
available at https://www.msha.gov/MSHAINFO/MSHAINF1.HTM.
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    MSHA maintains a data retrieval system on its Web site that allows 
users to examine data on inspections, violations, and accidents, as 
well as information about dust samplings, at specific mines throughout 
the United States.\19\ The information provided by the MSHA data 
retrieval system is based on data gathered from various MSHA systems. 
For example, when citations, orders or violations are issued by MSHA to 
mine operators, the information about such citations, orders or 
violations is entered by MSHA into MSHA's systems and subsequently 
reflected in the data retrieval system within a short period of time. 
The data retrieval system allows a user to search for information based 
on the identification numbers assigned to specific mines or contractors 
(MSHA Mine ID or Contractor ID), as well as by operator name, mine 
name, contractor name or controller name.\20\ In all cases, the 
information is displayed in the data retrieval system on a mine-by-mine 
basis.\21\
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    \19\ See https://www.msha.gov/DRS/DRSHOME.HTM.
    \20\ The controller is the company or individual that MSHA's 
Office of Assessments has determined to have ultimate control or 
ownership of the operator.
    \21\ When the disclosure requirements of Section 1503 of the Act 
were introduced, Senator Rockefeller noted his concern that ``there 
is no requirement to publicly disclose safety records'' of mining 
companies. See SA 3886 (an amendment to SA 3739 to S. 3217, 111th 
Cong. (May 6, 2010); Press Release: Rockefeller Requires Mining 
Companies to Disclose Safety Records, May 7, 2010, available at 
https://rockefeller.senate.gov/press/record.cfm?id=324768&.
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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.\22\ 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.\23\ 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.\24\
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    \22\ 30 U.S.C. 815(d).
    \23\ ``About FMSHRC'' on https://www.fmshrc.gov/fmshrc.html.
    \24\ 30 U.S.C. 816.
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    The disclosure requirements set forth in the Act are currently in 
effect.\25\ 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].'' \26\ Accordingly, we are proposing to amend our rules to 
implement and specify the scope and application of the disclosure 
requirements set forth in the Act and to require a limited amount of 
additional disclosure to provide context for certain items required by 
the Act.
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    \25\ See Section 1503(f) of the Act.
    \26\ Section 1503(d)(2) of the Act.
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    Specifically, we are proposing 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 and certain additional disclosures. The disclosure 
requirements for Forms 10-Q and 10-K would be set forth in new Item 106 
of Regulation S-K. Because the information required to be disclosed 
under proposed Item 106 of Regulation S-K would be set forth in an 
exhibit to the filing, we are proposing to amend Item 601 of Regulation 
S-K to add a new exhibit to Form 10-K and Form 10-Q. We are proposing 
to amend Forms 20-F and 40-F to include the same disclosure 
requirements as those proposed for issuers that are not foreign private 
issuers. In addition, we are proposing to add a new item to Form 8-K to 
implement the requirement imposed by Section 1503(b) of the Act, and to 
amend 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 Proposed Amendments

A. Required Disclosure in Periodic Reports

    As noted above, the requirements in Section 1503(a) are already in 
effect. We are proposing to codify the requirements into our disclosure 
rules in order to facilitate consistent compliance with them by 
reporting companies.
    In order to implement the disclosure requirement set forth in 
Section 1503(a) of the Act, we are proposing 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. These proposed items would be 
identical in substance and entitled, ``Mine Safety Disclosure.'' As 
discussed in detail below, 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

[[Page 80376]]

additional disclosure designed to provide context for such information.
1. Scope
    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 
sections 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'' is to have the 
meaning given such term in section 3 of the Mine Act.\27\ The Act also 
specifies that the term ``coal or other mine'' is to mean a coal or 
other mine as defined in section 3 of the Mine Act,\28\ that is subject 
to the provisions of the Mine Act.\29\
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    \27\ 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.
    \28\ Section 3(h) of the Mine Act:
    (1) ``Coal or other mine'' means (A) an area of land from which 
minerals are extracted in nonliquid form or, if in liquid form, are 
extracted with workers underground, (B) private ways and roads 
appurtenant to such area, and (C) 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;
    (2) 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;
    \29\ Section 1503(e)(2) of the Act.
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    We are proposing to include references to these definitions in new 
Item 106 \30\ and Item 601(b)(95) \31\ of Regulation S-K, the 
instructions to new Item 16J of Form 20-F \32\ and the notes to new 
Paragraph (18) of General Instruction B of Form 40-F.\33\ 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,\34\ we are 
proposing that, for each required disclosure item discussed below,\35\ 
the information would be required only for coal or other mines (as 
defined in the Mine Act) located in the United States. As a result, 
issuers that operate (or have subsidiaries that operate) mines outside 
the United States would not have to disclose information about such 
mines under the proposal. Thus, for example, an issuer that operates 
mines in both the United States and Canada would only be required to 
include information about its U.S. mines. While our proposals are 
limited to implementing the requirements of the Act and, therefore, do 
not extend to foreign mines, 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).
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    \30\ See proposed Item 106 of Regulation S-K (17 CFR 229.106).
    \31\ See proposed Item 601(b)(95) of Regulation S-K (17 CFR 
229.601(b)(95)).
    \32\ See instructions to proposed Item 16J under Part II of Form 
20-F.
    \33\ See notes to proposed Paragraph (18) of General Instruction 
B of Form 40-F.
    \34\ 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).
    \35\ See Section II.A.4 below for a discussion of the proposed 
disclosure requirements.
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    As proposed, we would include smaller reporting companies and 
foreign private issuers \36\ within the scope of the proposed rules 
implementing Section 1503(a) of the Act. We 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 sections 
13(a) or 15(d) of the Exchange Act. Because foreign private issuers are 
not subject to Regulation S-K, we are proposing to amend Forms 20-F and 
40-F to require the specified mine safety disclosure about mines 
subject to the Mine Act operated by a foreign private issuer (or a 
subsidiary of such foreign private issuer).\37\
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    \36\ 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.
    \37\ See Section IX below for the text of proposed amendments. 
As discussed in Section II.B.3 below, we are not proposing to 
require foreign private issuers to comply with Section 1503(b) of 
the Act by filing Forms 8-K.
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    Finally, we believe that the language of the Act referring to 
``each coal or other mine'' is intended to elicit disclosure of any 
citations, orders or violations for each distinct mine covered by the 
Mine Act, and is not intended to permit disclosure by grouping mines by 
project or geographic region.\38\ Although this approach may result in 
issuers reporting a significant volume of information in their periodic 
reports, this approach accords with the plain language of the Act. As 
noted above, information on a mine-by-mine basis is currently made 
publicly available through MSHA's data retrieval system.
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    \38\ To facilitate public input on implementation of the Act, 
the Commission has provided a series of e-mail links, organized by 
topic, on its website at https://www.sec.gov/spotlight/regreformcomments.shtml. The public comments we received on the 
topic of mine safety disclosure are available on our website at 
https://www.sec.gov/comments/df-title-xv/specialized-disclosures/specializeddisclosures.shtml. We received input from a commentator 
suggesting that the Commission adopt a materiality standard for 
reporting the matters under Section 1503(a) where an issuer has 
numerous operations. See letter from Rio Tinto. However, because 
Section 1503 does not appear to contemplate materiality thresholds, 
we are not proposing to include such a threshold for the disclosure 
requirement.
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Request for Comment
    (1) Section 1503 of the Act provides definitions of the terms 
``operator'' and ``coal or other mine'' but does not define the term 
``subsidiary.'' 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,'' which 
would apply to this disclosure in the absence of another definition. Is 
this definition appropriate for purposes of Section 1503, or should we 
include a different definition for ``subsidiary'' for purposes of 
Section 1503 disclosure? If so, how should we define that term?
    (2) In conformity with the language of Section 1503(a), we are 
proposing to apply the Act's periodic report disclosure requirement 
only to mines that are subject to the Mine Act, and not to mines in 
other jurisdictions. Is this approach appropriate? Will issuers that 
operate (or have subsidiaries that operate) mines in the United States 
be at a competitive advantage or disadvantage compared to issuers that 
operate mines in other jurisdictions because of the lack of disclosure 
about

[[Page 80377]]

non-U.S. mines? Should we instead expand the disclosure requirement to 
cover mines in all jurisdictions? If so, how would we address 
disclosure requirements for mines not subject to the Mine Act? How 
would we address the disclosure requirements if a jurisdiction does not 
have clear mine safety regulations?
    (3) Section 1503 of the Act does not contemplate an exception from 
disclosure for smaller reporting companies. Should the requirements 
apply to smaller reporting companies, as proposed, or should we exempt 
smaller reporting companies from the disclosure requirement or some 
portion of the disclosure requirement? Are there alternative 
accommodations we should consider for smaller reporting companies?
    (4) Section 1503 of the Act also does not contemplate any exception 
from disclosure for foreign private issuers. Should the requirements 
apply to foreign private issuers, as proposed? If not, why not?
    (5) As proposed, the required disclosure must be provided for each 
mine for which the issuer or a subsidiary of the issuer is an operator. 
How burdensome would such disclosure be for issuers to prepare? Could 
this approach produce such a volume of information that investors will 
be overwhelmed? Should we instead require disclosure by project or 
geographic region? Would this approach be consistent with Section 
1503(a) of the Act?
    (6) General Instruction I to Form 10-K and General Instruction H to 
Form 10-Q contain special provisions for the omission of certain 
information by wholly-owned subsidiaries. General Instruction J to Form 
10-K contains special provisions for the omission of certain 
information by asset-backed issuers. Should either or both of these 
types of registrants be permitted to omit the proposed mine safety 
disclosure in the annual reports on Form 10-K and quarterly reports on 
Form 10-Q?
2. Location of Disclosure
    The Act states that companies must include the disclosure in their 
periodic reports required pursuant to sections 13(a) or 15(d) of the 
Exchange Act. We are proposing to 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.\39\ The 
exhibit would include the detailed disclosure about specific violations 
and regulatory matters required by Section 1503(a) as implemented in 
our new rules. We are proposing this approach in order to facilitate 
access to the information about detailed mine safety matters without 
overburdening the traditional Exchange Act reports with extensive new 
disclosures. We note 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 not obviate the need to discuss mine safety matters as 
appropriate.
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    \39\ Proposed Item 4 under Part II of Form 10-Q, proposed Item 
4(b) under Part I of Form 10-K, proposed Item 16J under Part II of 
Form 20-F and proposed paragraph B.(18) under the General 
Instructions to Form 40-F.
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    We are not proposing any particular presentation requirements for 
the new disclosure, although we encourage issuers to use tabular 
presentations whenever possible if to do so would facilitate investor 
understanding.
Request for Comment
    (7) Because the Act states that issuers must include the mine 
safety disclosure in each periodic report filed with the Commission, we 
are proposing to require the disclosure in each filing on Forms 10-Q, 
10-K, 20-F and 40-F. For issuers that file using the domestic forms 
(Forms 10-Q and 10-K), should we, instead only require the disclosure 
annually? Would such an approach be consistent with the Act?
    (8) As proposed, we would not specify a particular presentation for 
the disclosure. Should we require a specific presentation, tabular or 
otherwise? If so, please provide details on an appropriate 
presentation.
    (9) We are proposing 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. Is this approach appropriate? Should 
we instead require the information to be presented in the body of the 
periodic report?
    (10) As noted above, Section 1503(a) requires the disclosure to be 
included in periodic reports. Should we also require the information to 
be included in registration statements?
    (11) Should we require the disclosure to be provided in an 
interactive data format? Why or why not? Would investors find 
interactive data to be a useful tool to analyze the information 
provided and generate statistics for their own use? If so, what format 
would be most appropriate for providing standardized data disclosure--
for example, eXtensible Markup Language (XML) or eXtensible Business 
Reporting Language (XBRL)? Could the use of interactive data make it 
possible for issuers to reduce reporting costs by using the same data 
that is already available through MSHA's data retrieval system?
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.'' 
Accordingly, we are proposing that each Form 10-Q would include the 
required disclosure for any orders, violations or citations received, 
penalties assessed or legal actions initiated during the quarter 
covered by the report.\40\ We are also proposing that each Form 10-K 
would include disclosure covering both the fourth quarter of the 
issuer's fiscal year, and cumulative information for the entire fiscal 
year. We believe this is consistent with Section 1503(a), since a Form 
10-K covers both the fourth quarter and the entire year. For each of 
Forms 20-F and 40-F, the disclosure would be required for the issuer's 
fiscal year.
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    \40\ As noted in Sections II.A.4.f and j below, we are also 
proposing 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.
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    Because mine operators have the right to contest orders, violations 
or citations they receive through the administrative process,\41\ there 
is a possibility an operator's challenge would result in dismissal of 
the order, violation or citation or in a reduction in the severity of 
the order, violation or citation below the level that triggers 
disclosure under Section 1503(a). One mining company \42\ has suggested 
that we not require disclosure of citations that, prior to the periodic 
filing, have been dismissed or resolved such that they fall below the 
reportable level, or alternatively that the issuer be able to elaborate 
its position with respect to citations, such as whether the citations 
have been or will be challenged or if the issuer believes the severity 
of the citation is unwarranted. Based on the language of Section 
1503(a) of the Act, we are not proposing to allow issuers to exclude 
information about orders, violations or citations that were received 
during the time period covered by the report but

[[Page 80378]]

subsequently were dismissed or reduced. However, the proposal would not 
prohibit the inclusion of additional information to provide context to 
the required disclosure. We would expect that issuers will include 
disclosure that complies with our existing disclosure requirements when 
providing any such context.
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    \41\ See 30 U.S.C. 815(d).
    \42\ See letter from Rio Tinto.
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Request for Comment
    (12) We are proposing to require the Form 10-K to include both 
disclosure about orders, citations, violations, assessments and legal 
actions received or initiated during the fourth quarter and the 
aggregate data for the whole year. Is this approach consistent with 
Section 1503(a)? Would it be consistent with Section 1503(a) to limit 
the information to the fourth quarter data? Alternatively, should we 
require the Form 10-K to include only fourth quarter information, or 
only the full year information?
    (13) As proposed, issuers would be required to report all orders, 
violations or citations received during the period covered by the 
report, regardless of whether such order, violation or citation was 
subsequently dismissed or reduced below a reportable level prior to the 
filing of the periodic report. Should we instead allow such orders, 
violations or citations to be excluded from the disclosure?
4. Required Disclosure Items
    Section 1503(a) of the Act includes a list of items to be disclosed 
in periodic reports. We are reiterating those items in new proposed 
Item 106 of Regulation S-K.\43\ In addition, we are proposing 
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. In 
addition, in order to provide context to investors, we are proposing 
one additional disclosure item not required by the Act that would 
require issuers to briefly describe the categories of violations, 
orders or citations included in the other items required by Section 
1503(a).
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    \43\ In this release, we reference new 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.
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    We discuss each disclosure item below. Under our proposal, each 
issuer that is required under Section 1503(a) to provide this 
disclosure \44\ would be required to provide the following for each 
coal or other mine \45\ for the time period covered by the report (as 
discussed above).\46\
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    \44\ See Section II.A.1 above.
    \45\ See Section II.A.1 above.
    \46\ See Section II.A.3 above. Note that compliance with Section 
1503 of the Act is currently required, regardless of whether we 
adopt the proposed changes to our disclosure rules.

    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 
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citation from MSHA.

    Section 104 of the Mine Act requires MSHA inspectors to issue 
various citations or orders for violations of health or safety 
standards.\47\ Violations are cited by MSHA inspectors, giving the 
operator time for abatement of the violation. 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 a ``S&S'' 
violation).\48\ In writing each citation or order, the MSHA inspector 
determines whether the violation is ``S&S'' or not.\49\ 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.'' 
\50\
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    \47\ 30 U.S.C. 814.
    \48\ 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 https://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.
    \49\ MSHA Program Policy Manual Vol. 1, p. 23.
    \50\ The MSHA data retrieval system can be accessed at https://
www.msha.gov/drs/drshome.HTM.
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    Because the language of Section 1503(a)(1)(A) 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, we are proposing to require disclosure 
under this item of all citations received under section 104 of the Mine 
Act that note an S&S violation.
Request for Comment
    (14) Is it appropriate to limit this disclosure item to only S&S 
violations, or should we require disclosure of every violation under 
section 104 of the Mine Act? \51\
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    \51\ MSHA reports that in 2009 (preliminary), of the 175,079 
citations and orders issued and not vacated, 33% were designated 
S&S. In 2008, of the 174,473 citations and orders issued by MSHA and 
not vacated, 30% were designated S&S. See U.S. Department of Labor, 
Mine Safety and Health Administration, Mine Safety and Health at a 
Glance (May 19, 2010), available at https://www.msha.gov/MSHAINFO/FactSheets/MSHAFCT10.HTM.
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    b. The total number of orders issued under section 104(b) of the 
Mine Act.
    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. The proposed rule would 
implement the Act's requirement to disclose this information.
    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.
    Section 104(d) of the Mine Act covers similar violations as 
discussed above, except that the standard is that the violation could 
significantly and substantially contribute to the cause and effect of a 
safety or health hazard, but the conditions do not cause imminent 
danger, and the inspector finds that the violation is caused by an 
unwarrantable failure of the operator to comply with the health and 
safety standards. The proposed rule would implement the Act's 
requirement to disclose this information.
    c. 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.'' \52\ The 
proposed rule would implement the Act's requirement to disclose this 
information.
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    \52\ 30 U.S.C. 820(b)(2).

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[[Page 80379]]

    d. 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 this 
information.
    e. The total dollar value of proposed assessments from MSHA under 
the Mine Act.
    Each issuance of a citation or order by MSHA 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.\53\
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    \53\ 30 U.S.C. 815(b)(1)(B).
---------------------------------------------------------------------------

    Because Section 1503(a) requires issuers to disclose the total 
dollar value of proposed assessments ``for the time period covered by'' 
the periodic report, we are proposing to require that issuers disclose 
the total dollar amount of assessments of penalties proposed by MSHA 
during the time period covered by the report. We are also proposing 
that the disclosure include the cumulative total of all proposed 
assessments of penalties outstanding as of the last day of the period 
covered by the report. We understand that proposed assessments may 
remain outstanding for extended periods of time, and believe such 
disclosure would provide a clearer picture of the most current health 
and safety issues for the issuer, as well as information about the 
magnitude of outstanding penalty assessments.
    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 a FMSHRC administrative law judge.\54\ Because Section 
1503(a)(1)(F) of the Act references the total dollar amount of proposed 
assessments from MSHA during the time period covered by the report, we 
are proposing that this disclosure include any dollar amounts of 
penalty assessments proposed during the time period that the issuer is 
contesting with MSHA or the FMSHRC. However, the proposal would not 
prohibit the inclusion of additional information noting that certain 
proposed assessments of penalties are being contested to provide 
context to the required disclosure. We would expect that issuers will 
include disclosure that complies with our existing disclosure 
requirements when providing any such context.
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    \54\ 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.
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Request for Comment
    (15) As proposed, the new rules would require disclosure of the 
total dollar amounts of assessments of penalties proposed by MSHA 
during the time period covered by the report, and also the cumulative 
total of all proposed assessments of penalties outstanding as of the 
date of the report. Is this approach appropriate?
    (16) As proposed, issuers would be required to include in the total 
dollar amount any proposed assessments of penalties that are being 
contested. Should issuers be permitted to exclude proposed assessments 
that are being contested? Should issuers be permitted to note the 
contested amounts separately?
    f. The total number of mining-related fatalities.
    Section 1503(a)(1)(G) of the Act sets forth the requirement to 
disclose the total number of mining-related fatalities, and our 
proposed rule would set forth this requirement. We note that 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. However, because, as discussed 
above,\55\ the application of Section 1503 is limited to mines that are 
subject to the provisions of the Mine Act, we believe that this 
disclosure requirement encompasses mining-related fatalities only at 
mines that are subject to the Mine Act. MSHA regulations require the 
reporting of all fatalities at a mine.\56\ 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).\57\ Since the MSHA regulations provide a 
comprehensive scheme of regulation, reporting and assessment for mine-
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.
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    \55\ See Section II.A.1 above.
    \56\ See 30 CFR 50.10 and 50.20.
    \57\ See MSHA Accident/Illness Investigation Handbook, Chapter 2 
Release 2 (February 2004) p. 9 located at https://www.msha.gov/READROOM/HANDBOOK/PH00-I-5.pdf (``MSHA Accident/Illness Handbook'').
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    MSHA regulations require the operator of a mine to contact MSHA at 
once without delay and within 15 minutes at a toll-free number, once 
the operator knows or should know that an accident has occurred 
involving: (a) A death of an individual at the mine; (b) an injury of 
an individual at the mine which has a reasonable potential to cause 
death; (c) an entrapment of an individual at the mine which has a 
reasonable potential to cause death; or (d) any other accident.\58\ In 
addition, MSHA regulations require each operator to prepare and file a 
report with MSHA of each accident, occupational injury, or occupational 
illness occurring at each mine, indicating therein whether such injury 
or illness resulted in death.\59\
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    \58\ 30 CFR 50.10; see also Section 103(j) of the Mine Act [30 
U.S.C. 813(j)].
    \59\ 30 CFR 50.20. See also Item 18 of Section C of MSHA Form 
7000-1 located at https://www.msha.gov/forms/70001inb.htm.
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    MSHA investigates all deaths on mine property.\60\ Deaths that have 
been determined to be ``non-chargeable'' are not counted in the 
statistics MSHA uses to assess the safety performance of the mining 
industry.\61\ These ``non-chargeable'' deaths include, among other 
things, homicides, suicides, deaths due to natural causes, and deaths 
involving trespassers.\62\ In cases where it is questionable whether a 
death is chargeable to the mining industry, MSHA may refer the case to 
its Fatality Review Committee.\63\ Each of the four members of the 
Fatality Review Committee conducts an independent review of the facts 
and circumstances surrounding the questionable death to determine 
whether it is chargeable to the mining industry.\64\
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    \60\ See MSHA Accident/Illness Handbook at p. 9.
    \61\ Id at p. 10.
    \62\ Id. See also MSHA Fatal Injury Guideline Matrix located at 
https://www.msha.gov/Fatals/Chargeability/ChargeabilityMatrix.pdf.
    \63\ MSHA Accident/Illness Handbook at p. 10.
    \64\ Id.
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    The proposed disclosure requirement encompasses all fatalities 
required to be reported pursuant to MSHA regulations, unless the 
fatality has been determined to be ``non-chargeable'' to the mining 
industry. We believe that this interpretation of the statutory language

[[Page 80380]]

is appropriate because it will result in consistency among reporting 
obligations.
Request for Comment
    (17) As proposed, we would require disclosure of mining-related 
fatalities only at mines that are subject to the Mine Act. However, 
many foreign jurisdictions already require mine operators to report 
mining-related fatalities.\65\ Would it be more appropriate to instead 
require disclosure of mining-related fatalities at all mines operated 
by companies that file periodic reports with the Commission, regardless 
of the location of the mine? For example, under such an approach, a 
foreign private issuer would have to disclose all mining-related 
fatalities at mines in its home country or any other jurisdiction, and 
domestic issuers would be required to disclose mining-related 
fatalities at mines outside of the United States. Would this be 
appropriate? How difficult would it be for issuers to compile and 
report this information? Would such an approach impose significant 
costs on issuers?
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    \65\ See e.g., Mines Safety and Inspection Act 1994 (Western 
Australia); Mine Health and Safety Act, 1996, Department of Mineral 
Resources Regulations, Chapter 23--Reporting of Accidents and 
Dangerous Occurences (Republic of South Africa).
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    (18) Should we, as proposed, 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? Should we add an instruction to the rule specifying this 
interpretation of the disclosure requirement? Would it be more 
appropriate to instead require disclosure of all fatalities regardless 
of the determination that it was ``non-chargeable''? Should we provide 
further guidance as to the timing of reporting for fatalities that are 
under review by MSHA's Fatality Review Committee?
    (19) If we were to require disclosure of mining-related fatalities 
regardless of the location of the mine, what standard, if any, should 
we apply for determining whether a fatality is related or unrelated to 
mining activity? For example, would it be appropriate to apply the MSHA 
framework to non-U.S. jurisdictions, or to look to each non-U.S. 
jurisdiction's mine safety regulatory scheme for guidance?
    g. A list of mines for which the issuer or a subsidiary received 
written notice from MHSA 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 
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 this information.
    h. A list of mines for which the issuer or a subsidiary received 
written notice from MHSA 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.\66\ The proposed rule would implement the Act's requirement 
to disclose this information.
---------------------------------------------------------------------------

    \66\ See 30 CFR 104.4.
---------------------------------------------------------------------------

    i. Any pending legal action before the Federal Mine Safety and 
Health Review Commission involving such coal or other mine.
    The FMSHRC is an independent agency established by the Mine Act 
that provides administrative trial and appellate review of legal 
disputes arising under the Mine Act.\67\ We are proposing that 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 be 
disclosed in the periodic report covering the time period during which 
the legal action was initiated. This disclosure would include, but not 
be limited to, any actions brought by the issuer or a subsidiary of the 
issuer before the FMSHRC to contest citations or penalties imposed by 
MSHA.\68\ As proposed, the new 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.\69\ Mine operators 
frequently contest proposed assessments \70\ and we believe that 
information about the resolution of pending legal actions would be 
useful in this context.
---------------------------------------------------------------------------

    \67\ 30 U.S.C. 815(d).
    \68\ Other types of cases that would be disclosed include, for 
example, those relating to orders to close a mine, miners' charges 
of safety related discrimination or miners' requests for 
compensation after a mine is idled by a closure order. See ``About 
FMSHRC'' at https://www.fmshrc.gov/fmshrc.html.
    \69\ See Section IX below for the text of proposed amendments.
    \70\ See Number of Penalties Assessed and Percent Contested, 
January 2007--July 2010 (Graphs and Charts), as of 09/09/2010, 
available at https://www.msha.gov/stats/ContestedCitations/Civil%20Penalties%20Assessed%20and%20Contested.pdf. The graphs 
illustrate that during the time period between January 2007 through 
July 2010, the percent of penalties contested ranged from 
approximately 10% to approximately 30% of the number of penalties 
assessed, and the percent of penalty dollars contested ranged from 
approximately 30% to approximately 75% of the penalty dollars 
assessed.
---------------------------------------------------------------------------

    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 mine involved, and a brief 
description of the category of violation, order or citation underlying 
the proceeding. We believe this limited additional information is 
necessary to make the information more useful to investors by putting 
the disclosure in context.
Request for Comment
    (20) As proposed, information about pending legal actions would be 
disclosed 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. Is this appropriate? 
Should we instead limit the disclosure to only those legal actions 
initiated during the period covered by the periodic report? Should we 
specifically require issuers to provide disclosure when a contested 
assessment has been vacated during the time period covered by the 
report?
    (21) Is the contextual information we are proposing to require to 
be included for each pending legal action appropriate? Should we 
require any other information about pending legal actions to be 
disclosed?
    j. A brief description of each category of violations, orders and 
citations reported
    Although not required by Section 1503 of the Act, we are proposing 
to require issuers to provide a brief description of each category of 
violations, orders and citations reported under new Items 106(a)(1) and 
106(a)(2) of Regulation S-K \71\ so that investors can understand the 
basis for the violations, orders or citations

[[Page 80381]]

referenced. For example, we would expect that an issuer that reports 
receipt of an order under section 107(a) of the Mine Act would include 
disclosure stating that such orders are issued for situations in which 
MSHA determines an imminent danger exists and result in orders of 
immediate withdrawal from the area of the mine affected by the 
condition. We believe this is appropriate to provide investors with 
context to the disclosure required by Section 1503(a) of the Act. We 
are concerned that without such a requirement, investors may be 
presented with disclosure that simply references the various provisions 
of the Mine Act, and would have to research the Mine Act and MSHA's 
rules to be able to assess the information.
---------------------------------------------------------------------------

    \71\ This proposed requirement would also apply to the 
corresponding categories of citations, orders and violations to be 
reported under proposed Item 16J(a) and (b) of Form 20-F and 
proposed Paragraph (18)(a) and (b) to General Instruction B of Form 
40-F.
---------------------------------------------------------------------------

Request for Comment
    (22) Will the proposed disclosure providing a brief description of 
each category of violations, orders and citations reported be useful 
for investors, or would the information otherwise provided in the 
proposed exhibit to the periodic report be sufficient? Is there any 
other disclosure we should require in order to put the disclosures 
required by Section 1503(a) of the Act in context for investors?

B. Form 8-K Filing Requirement

1. Triggering Events
    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.\72\ We are proposing to revise 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:
---------------------------------------------------------------------------

    \72\ Section 1503(b) of the Act.
---------------------------------------------------------------------------

     An imminent danger order under section 107(a) of the Mine 
Act; \73\
---------------------------------------------------------------------------

    \73\ See Section II.A.4.e. 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; \74\ or
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    \74\ See Section II.A.4.h. above for a description of the 
written notice 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.\75\
---------------------------------------------------------------------------

    \75\ See Section II.A.4.i. 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)].
---------------------------------------------------------------------------

    These orders and notices are also required to be disclosed under 
Section 1503(a) of the Act in issuers' periodic reports. We believe the 
plain language of Section 1503 of the Act requires such orders and 
notices to be reported both in issuers' Forms 8-K and their periodic 
reports. For example, if an issuer receives from MSHA one of the orders 
or notices specified above during the second quarter of the year, the 
issuer would file a Form 8-K reporting the receipt of the order or 
notice within four business days of receipt, include information about 
such order or notice in accordance with new Regulation S-K Item 106 in 
its Form 10-Q for the second quarter and include information regarding 
this violation in the annual cumulative total for the fiscal year in 
its Form 10-K for that fiscal year.
Request for Comment
    (23) 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. Should we revise our proposal to minimize duplicative 
disclosure such as by not requiring repetition of information 
previously reported? Would such an approach be consistent with the Act? 
Would our proposed disclosure approach be unduly burdensome for issuers 
or confusing to investors?
2. Required Disclosure and Filing Deadline
    Section 1503(b) of the Act does not specify the disclosure that 
issuers should provide in the required Form 8-K filing. We are 
proposing that new Item 1.04 of Form 8-K require, in each case, 
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.
    In addition, Section 1503(b) of the Act does not specify a filing 
deadline for the required Form 8-K. Consistent with our approach to 
other Form 8-K items, we are proposing that the current report under 
new Item 1.04 be required to be filed no later than four business days 
after the triggering event. We believe that, because the triggering 
events are clear and do not require management to make rapid 
materiality judgments, the four business day deadline provides adequate 
time for issuers to prepare accurate and complete information.
Request for Comment
    (24) Is there any other information that should be required to be 
disclosed under proposed Item 1.04 of Form 8-K? Will the information 
that we are proposing to require in the Form 8-K be useful for 
investors?
    (25) Should the filing period for a Form 8-K under proposed Item 
1.04 be four business days, as proposed, or should the filing period be 
longer? What factors should we consider in deciding whether to make the 
filing period longer?
3. Treatment of Foreign Private Issuers
    Foreign private issuers are not required to file current reports on 
Form 8-K.\76\ Instead, they are required to file under the cover of 
Form 6-K \77\ copies of all information that the foreign private issuer 
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.\78\ We do not propose to change these reporting 
requirements.\79\ As described above,\80\ we are proposing changes to 
Forms 20-F and 40-F that would require a foreign private issuer to 
disclose in each annual report the items described in Section 1503(a) 
of the Act. The proposed amendments include the same information that 
will be required of other 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,\81\ 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,\82\ 
or written notice from

[[Page 80382]]

MSHA of the potential to have a pattern of such violations.\83\
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    \76\ See Exchange Act Rules 13a-11 and 15d-11 [17 CFR 240.13a-11 
and 15d-11].
    \77\ Referenced in 17 CFR 249.306.
    \78\ See Exchange Act Rule 13a-6 [17 CFR 240.13a-16].
    \79\ 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]. 
See also letter from Rio Tinto.
    \80\ See Section II.A. above for a description of all the 
proposed disclosure requirements to Forms 20-F and 40-F.
    \81\ See Section II.A.4.e. above.