80374 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

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. 

81°51′41′′ W.; thence counterclockwise along 

a 5-NM arc centered at lat. 29°29′01′′ N., long. 

81°45′59′′ W. to the point of beginning. 

Designated altitudes. 500 feet MSL to FL 

230. 

Using agency. U.S. Navy, Fleet Area 

Control and Surveillance Facility, 

Jacksonville (FACSFAC JAX), Jacksonville, 

FL. 

* * * * * 

R–2910 Pinecastle, FL [Removed] 

* * * * * 

R–2910A Pinecastle, FL [New] 

Boundaries. Beginning at lat. 29°07′58′′ N., 

long. 81°48′29′′ W.; to lat. 29°10′01′′ N., long. 

81°50′34′′ W.; to lat. 29°14′01′′ N., long. 

81°45′49′′ W.; to lat. 29°11′51′′ N., long. 

81°42′59′′ W.; thence clockwise along a 5-NM 

arc centered at lat. 29°06′53′′ N., long. 

81°42′54′′ W. to lat. 29°10′14′′ N., long. 

81°38′39′′ W.; to lat. 29°00′00′′ N., long. 

81°30′00′′ W.; to lat. 29°00′01′′ N., long. 

81°42′29′′ W.; to lat. 29°03′15′′ N., long. 

81°46′50′′ W.; thence clockwise along a 5-NM 

arc centered at lat. 29°06′53′′ N., long. 

81°42′54′′ W. to the point of beginning. 

Designated altitudes. Surface to FL 230. 

Time of designation. Intermittent, 0500– 

0100 local, daily; other times by NOTAM, 6 

hours in advance. 

Controlling agency. FAA, Jacksonville 

ARTCC. 

Using agency. U.S. Navy, Fleet Area 

Control and Surveillance Facility, 

Jacksonville (FACSFAC JAX), Jacksonville, 

FL. 

* * * * * 

R–2910B Pinecastle, FL [New] 

Boundaries. Beginning at lat. 29°00′00′′ N., 

long. 81°30′00′′ W.; to lat. 28°57′56′′ N., long. 

81°28′24′′ W.; to lat. 28°55′20′′ N., long. 

81°36′12′′ W.; to lat. 29°00′01′′ N., long. 

81°42′29′′ W.; to the point of beginning. 

Designated altitudes. Surface to 6,000 feet 

MSL. 

Time of designation. Intermittent, 0500– 

0100 local, daily; other times by NOTAM, 6 

hours in advance. 

Controlling agency. FAA, Jacksonville 

ARTCC. 

Using agency. U.S. Navy, Fleet Area 

Control and Surveillance Facility, 

Jacksonville (FACSFAC JAX), Jacksonville, 

FL. 

* * * * * 

R–2910C Pinecastle, FL [New] 

Boundaries. Beginning at lat. 28°57′56′′ N., 

long. 81°28′24′′ W.; to lat. 28°53′39′′ N., long. 

81°33′56′′ W.; to lat. 28°55′20′′ N., long. 

81°36′12′′ W.; to the point of beginning. 

Designated altitudes. Surface to 6,000 feet 

MSL. 

Time of designation. Intermittent, 0500– 

0100 local, daily; other times by NOTAM, 

6 hours in advance. 

Controlling agency. FAA, Jacksonville 

ARTCC. 

Using agency. U.S. Navy, Fleet Area 

Control and Surveillance Facility, 

Jacksonville (FACSFAC JAX), Jacksonville, 

FL. 

* * * * * 

R–2910D Pinecastle, FL [New] 

Boundaries. Beginning at lat. 29°12′31′′ N., 

long. 81°29′59′′ W.; to lat. 29°00′00′′ N., long. 

81°30′00′′ W.; to lat. 29°10′14′′ N., long. 

81°38′39′′ W.; thence counterclockwise along 

a 5-NM arc centered at lat. 29°06′53′′ N., long. 

81°42′54′′ W.; to lat. 29°11′51′′ N., long. 

81°42′59′′ W.; to lat. 29°14′01′′ N., long. 

81°45′49′′ W.; to lat. 29°10′01′′ N., long. 

81°50′34′′ W.; to lat. 29°15′55′′ N., long. 

81°56′40′′ W.; to lat. 29°20′06′′ N., long. 

81°51′49′′ W.; to lat. 29°15′06′′ N., long. 

81°51′49′′ W.; to lat. 29°15′06′′ N., long. 

81°39′59′′ W.; to lat. 29°12′31′′ N., long. 

81°38′29′′ W.; to the point of beginning. 

Designated altitudes. 500 feet MSL to FL 

230. 

Time of designation. Intermittent, 0500– 

0100 local, daily; other times by NOTAM, 

6 hours in advance. 

Controlling agency. FAA, Jacksonville 

ARTCC. 

Using agency. U.S. Navy, Fleet Area 

Control and Surveillance Facility, 

Jacksonville (FACSFAC JAX), Jacksonville, 

FL. 

* * * * * 

Issued in Washington, DC, on December 

14, 2010. 

Edith V. Parish, 

Manager, Airspace, Regulations and ATC 

Procedures. 

[FR Doc. 2010–32046 Filed 12–21–10; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 (http://www.sec.gov/ 

rules/proposed.shtml); 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number S7–41–10 on the subject line; 

or 

• Use the Federal Rulemaking Portal 

(http://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 

(http://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, AttorneyAdvisor, 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80375 

9 17 CFR 239.13. 

10 15 U.S.C. 77a et seq. 

11Pub. L. 111–203 (July 21, 2010). 

12Section 1503(a) of the Act. 

13Section 1503(b) of the Act. 

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 

http://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 http://www.msha.gov/ 

MSHAINFO/MSHAINF1.HTM. 

19See http://www.msha.gov/DRS/ 

DRSHOME.HTM. 

20The controller is the company or individual 

that MSHA’s Office of Assessments has determined 

to have ultimate control or ownership of the 

operator. 

21When 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 http://rockefeller.senate.gov/press/ 

record.cfm?id=324768&. 

22 30 U.S.C. 815(d). 

23 ‘‘About FMSHRC’’ on http://www.fmshrc.gov/ 

fmshrc.html. 

24 30 U.S.C. 816. 

25See Section 1503(f) of the Act. 26Section 1503(d)(2) of the Act. 

I.A.3(b) of Form S–3 9 under the 

Securities Act of 1933 (‘‘Securities 

Act’’).10

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

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

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

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

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. 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80376 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

27Section 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. 

28Section 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; 

29Section 1503(e)(2) of the Act. 

30See proposed Item 106 of Regulation S–K (17 

CFR 229.106). 

31See proposed Item 601(b)(95) of Regulation S– 

K (17 CFR 229.601(b)(95)). 

32See instructions to proposed Item 16J under 

Part II of Form 20–F. 

33See notes to proposed Paragraph (18) of General 

Instruction B of Form 40–F. 

34The 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). 

35See Section II.A.4 below for a discussion of the 

proposed disclosure requirements. 

36See 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. 

37See 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. 

38To 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 

http://www.sec.gov/spotlight/ 

regreformcomments.shtml. The public comments 

we received on the topic of mine safety disclosure 

are available on our website at http://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. 

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

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). 

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

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. 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80377 

39Proposed 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. 

40As 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. 

41See 30 U.S.C. 815(d). 

42See letter from Rio Tinto. 

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. 

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. 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80378 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

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. 

44See Section II.A.1 above. 

45See Section II.A.1 above. 

46See 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. 

47 30 U.S.C. 814. 

48Secretary 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 http://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. 

49MSHA Program Policy Manual Vol. 1, p. 23. 

50The MSHA data retrieval system can be 

accessed at http://www.msha.gov/drs/ 

drshome.HTM. 

51MSHA 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 http://www.msha.gov/ 

MSHAINFO/FactSheets/MSHAFCT10.HTM. 

52 30 U.S.C. 820(b)(2). 

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. 

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). 

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

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 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

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

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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80379 

53 30 U.S.C. 815(b)(1)(B). 

54See 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. 

55See Section II.A.1 above. 

56See 30 CFR 50.10 and 50.20. 

57See MSHA Accident/Illness Investigation 

Handbook, Chapter 2 Release 2 (February 2004) p. 

9 located at http://www.msha.gov/READROOM/ 

HANDBOOK/PH00-I-5.pdf (‘‘MSHA Accident/ 

Illness Handbook’’). 

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 http:// 

www.msha.gov/forms/70001inb.htm. 

60See MSHA Accident/Illness Handbook at p. 9. 

61 Id at p. 10. 

62 Id. See also MSHA Fatal Injury Guideline 

Matrix located at http://www.msha.gov/Fatals/ 

Chargeability/ChargeabilityMatrix.pdf. 

63MSHA Accident/Illness Handbook at p. 10. 

64 Id. 

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

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. 

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 ‘‘nonchargeable’’ to the mining industry).57

Since the MSHA regulations provide a 

comprehensive scheme of regulation, 

reporting and assessment for minerelated 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. 

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

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 ‘‘nonchargeable’’ 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

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80380 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

65See 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). 

66See 30 CFR 104.4. 67 30 U.S.C. 815(d). 68Other 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 http:// 

www.fmshrc.gov/fmshrc.html. 

69See Section IX below for the text of proposed 

amendments. 

70See Number of Penalties Assessed and Percent 

Contested, January 2007—July 2010 (Graphs and 

Charts), as of 09/09/2010, available at http:// 

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. 

71This 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. 

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 miningrelated 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? 

(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 ‘‘nonchargeable’’? 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. 

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. 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80381 

72Section 1503(b) of the Act. 

73See 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)]. 

74See 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)]. 

75See 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)]. 

76See Exchange Act Rules 13a–11 and 15d–11 [17 

CFR 240.13a–11 and 15d–11]. 

77Referenced in 17 CFR 249.306. 

78See Exchange Act Rule 13a–6 [17 CFR 240.13a– 

16]. 

79This 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. 

80See Section II.A. above for a description of all 

the proposed disclosure requirements to Forms 20– 

F and 40–F. 

81See Section II.A.4.e. above. 

82See Section II.A.4.h. above. 

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. 

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: 

• An imminent danger order under 

section 107(a) of the Mine Act; 73

• 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 

• Written notice from MSHA of the 

potential to have a pattern of such 

violations.75

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80382 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

83See Section II.A.4.i. above. 

84See Selective Disclosure and Insider Trading, 

SEC Release No. 33–7881 (Aug. 15, 2000) [65 FR 

51715]; Additional Form 8–K Disclosure 

Requirements and Acceleration of Filing Date, SEC 

Release No. 33–8400 (March 16, 2004) [69 FR 

15594] (the ‘‘Additional Form 8–K Disclosure 

Release’’). 

85Rules 13a–11(c) and 15d–11(c) each provides 

that ‘‘[n]o failure to file a report on Form 8–K that 

is required solely pursuant to Item 1.01, 1.02, 2.03, 

2.04, 2.05, 2.06, 4.02(a), 5.02(e) or 6.03 of Form 8– 

K shall be deemed a violation of’’ Section 10(b) of 

the Exchange Act or Rule 10b–5 thereunder. 

86Additional Form 8–K Disclosure Release at 69 

FR 15607. 

87 44 U.S.C. 3501 et seq. 

88 44 U.S.C. 3507(d) and 5 CFR 1320.11. 

89Forms 20–F and 40–F may also be used by 

foreign private issuers to register a class of 

securities under the Exchange Act. In addition, 

Form 20–F sets forth many of the disclosure 

requirements for registration statements filed by 

foreign private issuers under the Securities Act. 

MSHA of the potential to have a pattern 

of such violations.83

Request for Comment 

(26) Should we require foreign private 

issuers to file disclosure about the 

receipt of imminent danger orders or 

notices of a pattern or potential pattern 

of violations within four days under 

cover of Form 8–K, Form 6–K or a 

special report on Form 20–F? Should we 

otherwise require a foreign private 

issuer to promptly disclose the receipt 

of such order or notices? Does a 

divergent treatment of U.S. issuers and 

foreign private issuers in connection 

with current reporting disadvantage 

U.S. issuers? Should this be addressed 

in our rules, and if so, how? To what 

extent, if any, would foreign private 

issuers have additional burdens or costs 

associated with reporting these events 

on a current basis? 

C. Amendment to General Instruction 

I.A.3.(b) of Form S–3 

We are proposing to amend General 

Instruction I.A.3.(b) of Form S–3 to 

provide that an untimely filing on Form 

8–K regarding new Item 1.04 would not 

result in loss of Form S–3 eligibility. 

Under our existing rules, the untimely 

filing on Form 8–K of certain items does 

not result in loss of Form S–3 eligibility, 

so long as Form 8–K reporting is current 

at the time the Form S–3 is filed. We 

believe that it is appropriate to add 

proposed Item 1.04 to the list of Form 

8–K items in General Instruction 

I.A.3.(b) of Form S–3. 

In the past, when we have adopted 

new disclosure requirements that 

differed from the traditional periodic 

reporting obligations of companies, we 

have acknowledged concerns about the 

potentially harsh consequences of the 

loss of Form S–3 eligibility, and 

addressed such concerns by specifying 

that untimely filing of Form 8–K 

relating to certain topics would not 

result in the loss of Form S–3 

eligibility.84 We note that Section 

1503(b) of the Act does not address the 

Securities Act implications of a failure 

to timely file a Form 8–K. Therefore, we 

are proposing to provide that untimely 

filing of the new Item 1.04 Form 8–K 

would not result in the loss of Form S– 

3 eligibility. 

We are not proposing to include new 

Item 1.04 in the list in Rules 13a–11(c) 

and 15d–11(c) under the Exchange Act 

of Form 8–K items eligible for a limited 

safe harbor from liability under Section 

10(b) or Rule 10b–5 under the Exchange 

Act.85 In 2004, when we adopted the 

limited safe harbor, we noted our view 

that the safe harbor is appropriate if the 

triggering event for the Form 8–K 

requires management to make a rapid 

materiality determination.86 The filing 

of an Item 1.04 Form 8–K is triggered by 

an event that does not require 

management to make a rapid materiality 

determination, and we believe that it is 

not necessary to extend the safe harbor 

to this new item. We solicit comment 

below on whether this treatment is 

appropriate for proposed Item 1.04. 

Request for Comment 

(27) Should we, as proposed, amend 

General Instruction I.A.3(b) of Form S– 

3 to add proposed Item 1.04 to the list 

of items on Form 8–K with respect to 

which an issuer’s failure timely to file 

the Form 8–K will not result in the loss 

of Form S–3 eligibility? Why or why 

not? If we were to adopt a current 

reporting requirement for foreign private 

issuers for the information covered by 

Section 1503(b) of the Act, should we 

approach Form F–3 eligibility in the 

same manner? 

(28) As proposed, we would not 

include proposed Item 1.04 in the list of 

items in Rules 13a–11(c) and 15d–11(c) 

with respect to which the failure to file 

a report on Form 8–K will not be 

deemed to be a violation of Section 

10(b) or Rule 10b–5. Should we instead 

add proposed Item 1.04 to the safe 

harbor? Why or why not? 

III. General Request for Comment 

We request and encourage any 

interested person to submit comments 

on any aspect of our proposals, other 

matters that might have an impact on 

the amendments, and any suggestions 

for additional changes. With respect to 

any comments, we note that they are of 

greatest assistance to our rulemaking 

initiative if accompanied by supporting 

data and analysis of the issues 

addressed in those comments and by 

alternatives to our proposals where 

appropriate. 

IV. Paperwork Reduction Act 

A. Background 

Certain provisions of the proposed 

amendments contain ‘‘collection of 

information’’ requirements within the 

meaning of the Paperwork Reduction 

Act of 1995 (PRA).87 We are submitting 

the proposed amendments to the Office 

of Management and Budget (OMB) for 

review in accordance with the PRA.88

The titles for the collection of 

information are: 

(A) ‘‘Regulation S–K’’ (OMB Control 

No. 3235–0071); 

(B) ‘‘Form 10–K’’ (OMB Control No. 

3235–0063); 

(C) ‘‘Form 10–Q’’ (OMB Control No. 

3235–0070); 

(D) ‘‘Form 8–K’’ (OMB Control No. 

3235–0060); 

(E) ‘‘Form 20–F’’ (OMB Control No. 

3235–0288); and 

(F) ‘‘Form 40–F’’ (OMB Control No. 

3235–0381). 

These regulations and forms were 

adopted under the Securities Act and 

the Exchange Act. They set forth the 

disclosure requirements for periodic 

and current reports filed by companies 

to inform investors.89 The hours and 

costs associated with preparing 

disclosure, filing forms and retaining 

records constitute reporting and cost 

burdens imposed by each collection of 

information. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

As discussed in more detail above, the 

proposed rule and form amendments 

would implement Section 1503 of the 

Act. Section 1503(a) 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 MSHA. We are 

proposing to add new Items 106 and 

601(b)(95) to Regulation S–K and amend 

Forms 10–Q, 10–K, 20–F and 40–F 

under the Exchange Act to implement 

and, to a limited degree, enhance the 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80383 

90 30 CFR 50.10 and 50.20. 

91While Form 20–F may be used by any foreign 

private issuer, Form 40–F is only available to a 

Canadian issuer that is eligible to participate in the 

U.S.-Canadian Multijurisdictional Disclosure 

System (‘‘MJDS’’). 

92Proposed Item 16J under Part II of Form 20–F 

and proposed paragraph (18) to General Instruction 

B of Form 40–F. 

93The $400 per hour cost for outside legal 

services is the same estimate used by the 

Commission for these services in the proposed 

consolidated audit trail rule: Exchange Act Release 

No. 62174 (May 26, 2010): 75 FR 32556 (June 8, 

2010). 

disclosure requirement set forth in 

Section 1503(a) of the Act. We are also 

proposing to add new Item 1.04 to Form 

8–K to implement the requirement of 

Section 1503(b) of the Act. In addition, 

we are proposing to amend General 

Instruction I.A.3(b) of Securities Act 

Form S–3. 

Issuers are currently required to 

comply with the provisions of Section 

1503 of the Act, therefore the Act has 

already increased the burdens and costs 

for issuers by requiring the disclosure 

set forth in Sections 1503(a) and (b) of 

the Act. Most of the information called 

for by the new disclosure requirements 

is publicly disclosed by MSHA and 

readily available to issuers, who receive 

the notices, orders and citations directly 

from MSHA and can also access the 

information via MSHA’s data retrieval 

system. Further, the proposed 

disclosure item for periodic reports 

requiring disclosure of mining-related 

fatalities is already subject to a 

collection of information under MSHA 

regulations.90 Our proposed 

amendments would incorporate the 

Act’s requirements into Regulation S–K 

and related forms, and would require 

certain additional disclosure to provide 

context to the disclosure items required 

by the Act. 

We anticipate that the proposed new 

Items 106 and 601(b)(95) of Regulation 

S–K would increase existing disclosure 

burdens for annual reports on Form 10– 

K and quarterly reports on Form 10–Q 

by requiring disclosure about certain 

mine health and safety violations 

designated by the Act. Because 

Regulation S–K does not apply directly 

to Forms 20–F and 40–F,91 we propose 

to amend those forms to include the 

same disclosure requirements as those 

proposed for issuers that are not foreign 

private issuers.92 We anticipate that new 

Item 1.04 of Form 8–K would increase 

the existing disclosure burden for 

current reports on Form 8–K by 

requiring issuers to file a Form 8–K 

upon receipt of three types of notices or 

orders from MSHA relating to mine 

health and safety concerns and 

specifying the information required 

about the orders or notices required to 

be disclosed. 

Compliance with the proposed 

amendments would be mandatory. 

Responses to the information collections 

would not be kept confidential, and 

there would be no mandatory retention 

period for the information disclosed. 

B. Burden and Cost Estimates Related to 

the Proposed Amendments 

We anticipate that the proposed rule 

and form amendments, if adopted, 

would increase the burdens and costs 

for issuers that would be subject to the 

proposed amendments. For purposes of 

the PRA, we estimate the total annual 

increase in paperwork burden for all 

affected companies to comply with our 

proposed collection of information 

requirements to be approximately 1,677 

hours of company personnel time and 

approximately $263,500 for the services 

of outside professionals. These 

estimates include the time and the cost 

of implementing disclosure controls and 

procedures, preparing and reviewing 

disclosure, filing documents and 

retaining records. In deriving our 

estimates, we assume that: 

• For Forms 10–K, 10–Q and 8–K, an 

issuer incurs 75% of the annual burden 

required to produce each form, and 

outside firms, including legal counsel, 

accountants and other advisors retained 

by the issuer incur 25% of the annual 

burden required to produce the form at 

an average cost of $400 per hour; 93 and 

• For Forms 20–F and 40–F, a foreign 

private issuer incurs 25% of the annual 

burden required to produce each form, 

and outside firms retained by the issuer 

incur 75% of the burden require to 

produce each form at an average cost of 

$400 per hour. 

The portion of the burden carried by 

outside professionals is reflected as a 

cost, while the portion of the burden 

carried by the company internally is 

reflected in hours. 

We have based our estimates of the 

effect that the adopted rule and form 

amendments would have on those 

collections of information primarily on 

our understanding that the information 

required to be disclosed is readily 

available to issuers, and that therefore 

the burden imposed by the disclosure 

requirements is mainly in formatting the 

information in order to comply with our 

disclosure requirements and ensuring 

that appropriate disclosure controls and 

procedures are in place to facilitate 

reporting of the information. In this 

regard, we note that mine operators 

receive the relevant notices, citations 

and similar information directly from 

MSHA, and that issuers could also 

access the information via MSHA’s 

publicly available data retrieval system. 

1. Regulation S–K 

While the proposed rule and form 

amendments would make revisions to 

Regulation S–K, the collection of 

information requirements for that 

regulation are reflected in the burden 

hours estimated for Forms 10–K and 10– 

Q. The rules in Regulation S–K do not 

impose any separate burden. Consistent 

with historical practice, we are 

proposing to retain an estimate of one 

burden hour to Regulation S–K for 

administrative convenience. 

2. Form 10–K 

Based on a review of companies filing 

under certain SICs, as well as a review 

of companies that are currently 

providing disclosure of mine safety 

violations in Commission filings in 

accordance with Section 1503 of the 

Act, we estimate that, of the 13,545 

Form 10–Ks filed annually, 

approximately 95 are filed by 

companies that operate, or have a 

subsidiary that operates, a mine subject 

to the Mine Act, and that therefore 

would be affected by the proposed rule 

and form amendments. For purposes of 

the PRA, we assume that each such filer 

would have disclosures about mine 

safety violations to include in its Form 

10–K. We further estimate that the 

proposed rule and form amendments 

would add 5 burden hours to the total 

burden hours required to produce each 

Form 10–K. 

3. Form 20–F 

Based on a review of companies filing 

under certain SICs, as well as a review 

of companies that are currently 

providing disclosure of mine safety 

violations in Commission filings in 

accordance with Section 1503 of the 

Act, we currently estimate that of the 

942 Form 20–F annual reports filed 

annually by foreign private issuers, 

approximately 15 are filed by 

companies that operate, or have a 

subsidiary that operates, a mine subject 

to the Mine Act, and that therefore 

would be affected by the proposed rule 

and form amendments. For purposes of 

the PRA, we assume that each such filer 

would have disclosures about mine 

safety violations to include in its Form 

20–F. As with Form 10–K, we estimate 

that the proposed rule and form 

amendments would add 5 burden hours 

to the total burden hours required to 

produce each Form 20–F. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80384 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

94We estimate that approximately 95 companies 

with a Form 10–Q filing obligation would be 

affected by the proposed rule and form 

amendments. Each such company would file three 

quarterly reports on Form 10–Q per year. 95 

companies x 3 Forms 10–Q per year = 285 Forms 

10–Q. 

95See U.S. Department of Labor, Office of 

Inspector General, In 32 Years MSHA Has Never 

Successfully Exercised Its Pattern of Violations 

Authority, Report Number 05–10–005–06–001 

(Sept. 29, 2010). According to data available on 

MSHA’s website, 631 and 562 imminent danger 

orders under Section 107(a) were issued during 

fiscal 2010 and 2009, respectively. See Violations 

Data Set (as of Nov. 12, 2010), available at http:// 

www.msha.gov/OpenGovernmentData/ 

OGIMSHA.asp (on file with the Division of 

Corporation Finance). Note that this number 

includes all imminent danger orders issued to all 

companies subject to MSHA’s jurisdiction, not only 

to reporting companies that are subject to the 

disclosure requirements of Section 1503 of the Act. 

4. Form 40–F 

Based on a review of companies filing 

under certain SICs, as well as a review 

of companies that are currently 

providing disclosure of mine safety 

violations in Commission filings in 

accordance with Section 1503 of the 

Act, we currently estimate that of the 

205 Form 40–F annual reports filed 

annually by foreign private issuers, 

approximately 15 are filed by 

companies that operate, or have a 

subsidiary that operates, a mine subject 

to the Mine Act, and that therefore 

would be affected by the proposed rule 

and form amendments. For purposes of 

the PRA, we assume that each such filer 

would have disclosures about mine 

safety violations to include in its Form 

40–F. As with Forms 10–K and 20–F, 

we estimate that the proposed rule and 

form amendments would add 5 burden 

hours to the total burden hours required 

to produce each Form 40–F annual 

report. 

5. Form 10–Q 

Based on a review of companies filing 

under certain SICs, as well as a review 

of companies that are currently 

providing disclosure of mine safety 

violations in Commission filings in 

accordance with Section 1503 of the 

Act, we estimate that, of the 32,462 

Form 10–Qs filed annually, 

approximately 285 are filed by 

companies that operate, or have a 

subsidiary that operates, a mine subject 

to the Mine Act, and that therefore 

would be affected by the proposed rule 

and form amendments.94 For purposes 

of the PRA, we assume that each such 

filer would have disclosures about mine 

safety violations to include in each 

Form 10–Q. We further estimate that the 

proposed rule and form amendments 

would add 5 burden hours to the total 

burden hours required to produce each 

Form 10–Q. 

6. Form 8–K 

We estimate that companies annually 

file 115,795 Form 8–Ks. Only 

companies that are operators, or have 

subsidiaries that are operators, of coal or 

other mines (as defined in the Mine Act, 

and subject to the Mine Act) are 

required to comply with the proposed 

new Form 8–K requirement. For 

purposes of the PRA, we estimate that 

there will be approximately 95 Form 

8–K filers under new Item 1.04, which 

is based on our estimate of the number 

of Form 10–K filers that operate, or have 

a subsidiary that operates, a mine 

subject to the Mine Act, and that 

therefore would be affected by the 

proposed rule and form amendments. In 

addition, we understand that the 

triggering events for Form 8–K filing set 

forth in Section 1503(b)(2)—the receipt 

of written notice from MSHA that the 

coal or other mine has a pattern of 

violations or the potential to have such 

a pattern—are very rare, while the 

triggering event set forth in Section 

1503(b)(1)—the receipt of an imminent 

danger order—is more common.95 For 

purposes of this calculation, we assume 

that each potential filer under proposed 

Item 1.04 of Form 8–K would file three 

Forms 8–K per year under new Item 

1.04 and we estimate that the proposed 

amendments to Form 8–K would add 1 

burden hour to the total burden hours 

required to produce each Form 8–K. 

C. Summary of Proposed Changes to 

Annual Compliance Burden in 

Collection of Information 

The table below illustrates the total 

incremental annual compliance burden 

of the collection of information in hours 

and in cost under the proposed 

amendments for annual reports, 

quarterly reports and current reports on 

Form 8–K under the Exchange Act 

(Table 1). There is no change to the 

estimated burden of the collection of 

information under Regulation S–K 

because the burdens that Regulation 

S–K imposes are reflected in our revised 

estimates for the forms. The burden 

estimates were calculated by 

multiplying the estimated number of 

annual responses by the estimated 

average number of hours it would take 

a company to prepare and review the 

proposed disclosure requirements. 

Form 

Current 

annual response 

Current 

burden hours 

Increase in 

burden hours 

Proposed 

burden hours 

Current 

professional 

costs 

($) 

Increase in 

professional 

costs 

($) 

Proposed 

professional 

costs 

($) 

10–K ........................... 13,545 21,363,548 356 21,363,904 2,848,473,000 47,500 2,848,520,500 

20–F ........................... 942 622,907 19 622,926 743,089,980 22,500 743,112,480 

40–F ........................... 205 21,884 19 21,903 26,260,500 22,500 26,283,000 

10–Q .......................... 32,462 4,559,793 1,069 4,560,862 607,972,400 142,500 608,114,900 

8–K ............................. 115,795 493,436 214 493,650 65,791,500 28,500 65,820,000 

D. Request for Comment 

Pursuant to 44 U.S.C. 3506(c)(2)(B), 

we request comment in order to: 

• Evaluate whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of the Commission, including 

whether the information would have 

practical utility; 

• Evaluate the accuracy of our 

estimates of the burden of the proposed 

collections of information; 

• Determine whether there are ways 

to enhance the quality, utility, and 

clarity of the information to be 

collected; 

• Evaluate whether there are ways to 

minimize the burden of the collections 

of information on those who respond, 

including through the use of automated 

collection techniques or other forms of 

information technology; and 

• Evaluate whether the proposed 

amendments would have any effects on 

any other collections of information not 

previously identified in this section. 

Any member of the public may direct 

to us any comments concerning the 

accuracy of these burden estimates and 

any suggestions for reducing the 

burdens. Persons who desire to submit 

comments on the collection of 

information requirements should direct 

their comments to the OMB, Attention: 

Desk Officer for the Securities and 

Exchange Commission, Office of 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80385 

96See http://www.msha.gov/DRS/ 

DRSHOME.HTM. 

Information and Regulatory Affairs, 

Washington, DC 20503, and send a copy 

of the comments to Elizabeth M. 

Murphy, Secretary, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090, with 

reference to File No. S7–41–10. 

Requests for materials submitted to the 

OMB by us with regard to these 

collections of information should be in 

writing, refer to File No. S7–41–10 and 

be submitted to the Securities and 

Exchange Commission, Office of 

Investor Education and Advocacy, 100 F 

Street NE., Washington DC 20549–0213. 

Because the OMB is required to make a 

decision concerning the collections of 

information between 30 and 60 days 

after publication, your comments are 

best assured of having their full effect if 

the OMB receives them within 30 days 

of publication. 

V. Cost-Benefit Analysis 

A. Introduction and Objectives of 

Proposals 

We are proposing the rule and form 

amendments discussed in this release to 

implement the disclosure requirements 

set forth in Section 1503 of the Act and 

to require limited additional disclosure 

to provide context for certain items 

required by that Section. 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. 

As discussed in detail above, 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 Mine Act and administered by 

MSHA. MSHA inspectors issue 

citations, orders and decisions directly 

to mine operators during the course of 

inspections and MSHA assesses and 

collects civil monetary penalties for 

violations. Information on a mine-bymine basis about inspections, violations, 

and accidents is publicly available on 

MSHA’s data retrieval system on its 

Web site.96 Therefore, we believe the 

information required to be disclosed 

under Section 1503 of the Act and our 

proposed rules is readily available to 

issuers. Further, because the disclosure 

requirements set forth in Section 1503 

are currently in effect, we assume that 

issuers have already begun to develop 

the necessary controls and procedures 

to review and prepare the information 

required by Section 1503 of the Act for 

filing with the Commission, such that 

the additional incremental disclosure 

we are proposing to provide context for 

certain items required by that Section 

will not require issuers to implement 

additional controls and procedures. 

We are proposing amendments to 

Form 10–K, Form 10–Q, Form 20–F and 

Form 40–F to provide for the disclosure 

required by Section 1503(a) of the Act 

and certain additional disclosures. New 

Item 106 of Regulation S–K, new Item 

16J of Form 20–F and new Paragraph 

(18) of General Instruction B of Form 

40–F would detail the information to be 

disclosed in accordance with Section 

1503(a) of the Act, and the proposed 

amendment to Item 601 of Regulation 

S–K would set forth the exhibit 

requirement for Form 10–K and Form 

10–Q for the information required to be 

disclosed under proposed Item 106 of 

Regulation S–K. We are also proposing 

amendments to Form 8–K to add new 

Item 1.04 to implement the requirement 

imposed by Section 1503(b) of the Act. 

Finally, we propose to amend General 

Instruction I.A.3.(b) of Form S–3 to add 

new Form 8–K Item 1.04 to the list of 

Form 8–K items the untimely filing of 

which will not result in loss of Form S– 

3 eligibility. 

The Commission is sensitive to the 

costs and benefits that would be 

imposed by the proposed rule and form 

amendments. The discussion below 

focuses on the costs and benefits of the 

decisions made by the Commission to 

fulfill the mandates of the Act, rather 

than the cost and benefits of the 

mandates of the Act itself. However, to 

the extent that the Commission helps 

achieve the benefits intended by the 

Act, the two types of benefits are not 

entirely separable. 

B. Benefits 

The proposed rulemaking is intended 

to implement the requirements of 

Section 1503 of the Act. Our proposed 

Regulation S–K and form amendments 

would implement the requirements of 

the Act by reiterating the disclosure 

items listed in Section 1503, which are 

currently in effect. We are also 

proposing to require limited additional 

disclosure in periodic reports 

addressing: 

• Brief descriptions of the categories 

of violations, orders or citations 

disclosed in response to the Section 

1503(a) disclosure requirement; 

• Total dollar values of proposed 

penalty assessments from MSHA; and 

• Descriptions of legal actions 

pending before the FMSHRC and 

developments material to previously 

reported pending legal actions. 

In addition, our proposed amendment to 

Form 8–K would require additional 

disclosure beyond that specifically 

designated by Section 1503(b) of the Act 

by specifying the information required 

about the orders or notices required to 

be disclosed, and specifying a four 

business day filing deadline for Forms 

8–K filed under proposed Item 1.04. 

We believe the enhanced disclosures 

in periodic reports about the categories 

of violations will improve the ability of 

investors to understand the statutorily 

required information about mine safety 

violations without having extensive 

knowledge of the Mine Act and the 

violations, orders and citations 

referenced therein. We believe that 

investors would also benefit from the 

proposed disclosure in periodic reports 

of the total dollar value of the 

assessments and the description of legal 

actions and developments relating to 

legal actions because it would place the 

required disclosures in context. 

Our proposed amendment to Form 8– 

K specifying that the form is to be filed 

within four business days of receipt of 

the order or notice designated under 

Section 1503(b) of the Act would 

provide issuers and investors with 

certainty about the timing of that 

disclosure requirement. 

Our proposed rule and form 

amendments also specify for issuers 

how, in what form, and when to report 

the mine safety information required by 

the Act. These rules are designed to 

facilitate compliance with the new 

statutory requirements. 

C. Costs 

The vast majority of the costs 

resulting from the disclosures required 

by Section 1503 of the Act arise whether 

or not we adopt rules to implement the 

Section. Moreover, the information 

required to be disclosed under Section 

1503 is already subject to an extensive 

recordkeeping regime under MSHA and 

is readily available to issuers via 

MSHA’s data retrieval system. The 

primary costs to result from this 

rulemaking are costs associated with the 

formatting and filing of the information 

and certain additional disclosures we 

are proposing: the description of the 

incidents, total dollar value of the 

proposed penalty assessments and the 

description of legal actions, as noted 

above. Given that this information 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80386 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

97For purposes of the PRA, we estimate the total 

cost of the disclosure to be approximately 1,677 

hours of company personnel time and 

approximately $263,500 for the services of outside 

professionals. However, this amount includes the 

costs associated with the disclosure requirement of 

Section 1503 of the Act, as well as our proposed 

additional disclosure. As discussed above, the 

proposed additional disclosure is only a small 

portion of the burden of the disclosure requirement; 

therefore, we believe the costs of the additional 

disclosure would be a small fraction of the total 

amount disclosed for PRA purposes. 

98 15 U.S.C. 78w(a). 

99 15 U.S.C. 77b(b). 

100 15 U.S.C. 78c(f). 101 5 U.S.C. 603. 

102 5 U.S.C. 601. 

103 5 U.S.C. 601(6). 

should be readily available to issuers 

and the additional information does not 

require a substantial amount of 

additional disclosure, we believe that 

these costs would be small.97

D. Request for Comment 

We request data to quantify the costs 

and the value of the benefits described 

above. We seek estimates of these costs 

and benefits, as well as any costs and 

benefits not already defined, that may 

result from the adoption of these 

proposed amendments. We also request 

qualitative feedback on the nature of the 

benefits and costs described above and 

any benefits and costs we may have 

overlooked. 

VI. Consideration of Impact on the 

Economy, Burden on Competition and 

Promotion of Efficiency, Competition 

and Capital Formation 

Section 23(a)(2) of the Exchange 

Act 98 requires us, when adopting rules 

under the Exchange Act, to consider the 

impact that any new rule would have on 

competition. In addition, Section 

23(a)(2) prohibits us from adopting any 

rule that would impose a burden on 

competition not necessary or 

appropriate in furtherance of the 

purposes of the Exchange Act. 

Section 2(b) 99 of the Securities Act 

and Section 3(f) 100 of the Exchange Act 

require us, when engaging in 

rulemaking where we are required to 

consider or determine whether an action 

is necessary or appropriate in the public 

interest, to consider, in addition to the 

protection of investors, whether the 

action will promote efficiency, 

competition, and capital formation. 

Our proposed amendments would 

implement the requirements of Section 

1503 of the Act. We have proposed a 

few additional disclosure requirements 

to provide investors with context for the 

information required to be disclosed 

under Section 1503. We believe the 

additional disclosure will improve the 

ability of investors to understand the 

statutorily required information about 

mine safety violations without having 

extensive knowledge of the Mine Act 

and the orders, citations and violations 

referenced therein. 

We do not believe that the additional 

disclosure we have proposed in our 

rulemaking would impose a burden on 

competition. Section 1503 of the Act 

imposed the substance of the disclosure 

requirements set forth in our proposals. 

The additional disclosure that we have 

proposed to require is not substantial, 

but rather brief descriptions to place the 

mine safety disclosures in context. In 

addition, we believe the additional 

information should be readily available 

to issuers. Accordingly, since the 

additional disclosure is designed to 

provide context to the information 

required to be disclosed by Section 1503 

of the Act, and does not place a 

significant burden on the issuer, we 

believe that it will not impose a burden 

on competition. Likewise, we do not 

expect that the additional disclosure we 

are proposing to require would have a 

significant impact on capital formation. 

We believe that the proposed 

clarifications to the mine safety 

information required by the Act will 

provide direction and consistency as to 

how, in what form, and when to report 

the relevant information. We believe 

that the specifications in the rulemaking 

will improve the efficiency of the 

reporting process for issuers and 

provide for a more efficient and 

effective review of the information by 

investors. 

The loss of eligibility by an issuer to 

use Form S–3 could significantly restrict 

the ability of a company to raise capital 

and may be a disproportionately large 

negative consequence of an untimely 

filing of a Form 8–K. To address this 

potential burden on capital formation, 

we are proposing to revise the eligibility 

rules under Form S–3 so that an 

untimely filing of a report under new 

Item 1.04 of Form 8–K would not result 

in a loss of eligibility to use that form. 

We request comment on whether the 

proposed amendments would promote 

efficiency, competition, and capital 

formation or have an impact or burden 

on competition. Commentators are 

requested to provide empirical data and 

other factual support for their view to 

the extent possible. 

VII. Small Business Regulatory 

Enforcement Fairness Act 

For purposes of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA) 101 we solicit data to 

determine whether the proposed rule 

amendments constitute a ‘‘major’’ rule. 

Under SBREFA, a rule is considered 

‘‘major’’ where, if adopted, it results or 

is likely to result in: 

• An annual effect on the economy of 

$100 million or more (either in the form 

of an increase or a decrease); 

• A major increase in costs or prices 

for consumers or individual industries; 

or 

• Significant adverse effects on 

competition, investment or innovation. 

Commentators should provide 

empirical data on (a) the potential 

annual effect on the economy; (b) any 

increase in costs or prices for consumers 

or individual industries; and (c) any 

potential effect on competition, 

investment or innovation. 

VIII. Initial Regulatory Flexibility Act 

Analysis 

This Initial Regulatory Flexibility 

Analysis has been prepared in 

accordance with the Regulatory 

Flexibility Act.102 It relates to proposed 

revisions to Regulation S–K and forms 

under the Securities Act and the 

Exchange Act regarding disclosure 

about mine safety. 

A. Reasons for, and Objectives of, the 

Proposed Action 

We are proposing rulemaking to 

implement the disclosure requirements 

set forth in Section 1503 of the Act and 

to require limited additional disclosure 

to provide context for certain items 

required by the 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 MSHA. 

B. Legal Basis 

We are proposing the amendments 

pursuant to Sections 7, 10, and 19(a) of 

the Securities Act, Sections 12, 13, 15 

and 23 of the Exchange Act, and Section 

1503 of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act. 

C. Small Entities Subject to the 

Proposed Action 

The proposed amendments would 

affect some companies that are small 

entities. The Regulatory Flexibility Act 

defines ‘‘small entity’’ to mean ‘‘small 

business,’’ ‘‘small organization,’’ or 

‘‘small governmental jurisdiction.’’ 103


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80387 

104 17 CFR 230.157. 

105 17 CFR 240.0–10(a). 106See 30 CFR 50.10. 

The Commission’s rules define ‘‘small 

business’’ and ‘‘small organization’’ for 

purposes of the Regulatory Flexibility 

Act for each of the types of entities 

regulated by the Commission. Securities 

Act Rule 157 104 and Exchange Act Rule 

0–10(a) 105 define a company, other than 

an investment company, to be a ‘‘small 

business’’ or ‘‘small organization’’ if it 

had total assets of $5 million or less on 

the last day of its most recent fiscal year. 

We believe that our proposals would 

affect small entities that (i) are required 

to file reports under Sections 13(a) or 

15(d) of the Exchange Act and (ii) 

operate, or have a subsidiary that 

operates, a coal or other mine, and 

therefore are required to provide mine 

safety disclosure under Section 1503 of 

the Act. We estimate that there are 

approximately 25 companies that would 

currently be required to provide the 

Section 1503 disclosure and that may be 

considered small entities. We note that 

there are a significant number of small 

entities that are exploration stage 

mining companies that would be 

required to provide the Section 1503 

disclosure if such companies were to 

become operators, or have subsidiaries 

that become operators, of coal or other 

mines subject to the Mine Act. 

D. Reporting, Recordkeeping, and Other 

Compliance Requirements 

The disclosure requirements we are 

proposing today are intended to 

implement the disclosure requirements 

set forth in Section 1503 of the Act and 

to require additional disclosure to 

provide context for certain items 

required by the Act. These amendments 

would require small entities that are 

required to file reports under Sections 

13(a) or 15(d) of the Exchange Act and 

operate, or have a subsidiary that 

operates, a coal or other mine to provide 

mine safety disclosure under applicable 

rules and forms. 

Small entities would be required to 

include the disclosure in their annual 

report on Form 10–K, Form 20–F or 

Form 40–F and, if applicable, quarterly 

report on Form 10–Q and current report 

on Form 8–K. 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. New Item 106 of Regulation 

S–K, new Item 16J of Form 20–F and 

new Paragraph (18) of General 

Instruction B of Form 40–F would detail 

the information to be disclosed in 

accordance with Section 1503(a) of the 

Act, and the proposed amendment to 

Item 601 of Regulation S–K would set 

forth the exhibit requirement for Form 

10–K and Form 10–Q for the 

information required to be disclosed 

under proposed Item 106 of Regulation 

S–K. We are also proposing 

amendments to Form 8–K to add new 

Item 1.04 to implement the requirement 

imposed by Section 1503(b) of the Act. 

Finally, we propose to amend General 

Instruction I.A.3.(b) of Form S–3 to add 

new Form 8–K Item 1.04 to the list of 

Form 8–K items the untimely filing of 

which will not result in loss of Form 

S–3 eligibility. 

E. Duplicative, Overlapping, or 

Conflicting Federal Rules 

Section 1503 of the Act imposed the 

disclosure requirements set forth in 

Sections 1503(a) and (b) of the Act, 

regardless of whether the Commission 

adopts rules to implement those 

provisions. Our proposed amendments 

incorporate the Act’s requirements into 

Regulation S–K and related forms. The 

disclosure requirement of Section 

1503(a)(1)(G) of the Act, which requires 

disclosure of mining-related fatalities, 

overlaps to some extent with a 

disclosure requirement under MSHA 

rules. MSHA requires companies to 

report immediately any death of an 

individual at a mine,106 which MSHA 

then makes available to the public 

through its data retrieval system on its 

Web site, http://www.msha.gov. 

F. Significant Alternatives 

The Regulatory Flexibility Act directs 

us to consider alternatives that would 

accomplish our stated objectives, while 

minimizing any significant adverse 

impact on small entities. In connection 

with the proposed disclosure 

amendments, we considered the 

following alternatives: 

(1) Establishing differing compliance 

or reporting requirements or timetables 

which take into account the resources 

available to smaller entities; 

(2) Exempting smaller entities from 

coverage of the disclosure requirements, 

or any part thereof; 

(3) The clarification, consolidation, or 

simplification of disclosure for small 

entities; and 

(4) Use of performance standards 

rather than design standards. 

Section 1503 of the Act requires all 

entities, including small entities, that 

are required to file reports under 

Sections 13(a) or 15(d) of the Exchange 

Act and operate, or have a subsidiary 

that operates, a coal or other mine to 

provide mine safety disclosure under 

applicable rules and forms. These 

requirements apply without regard to 

whether we adopt rules to implement 

them. The proposed amendments 

implement the disclosure requirements 

set forth in Section 1503 of the Act, and 

require additional disclosure to provide 

context for certain items required by the 

Act. Given the statutory disclosure 

requirements in Section 1503 of the Act, 

the Act does not appear to contemplate 

separate compliance or reporting 

requirements for smaller entities. We 

nevertheless solicit comment on the 

propriety of a complete or partial 

exemption from the requirements for 

smaller entities. 

Our proposed amendments would 

require clear and straightforward 

disclosure of the information required 

by Section 1503 of the Act. We have 

used design rather than performance 

standards in connection with the 

proposed amendments. By specifying in 

the Act the disclosure required, 

Congress appears to have contemplated 

that consistent, comparable disclosure 

would be provided. We believe that the 

specific disclosure requirements in the 

proposed amendments would promote 

consistent and comparable disclosure 

among all companies that operate, or 

have a subsidiary that operates, a coal 

or other mine. Further, based on our 

past experience, we believe that specific 

disclosure requirements for this 

information would be more useful to 

investors than would a performance 

standard. 

Currently, small entities are subject to 

some different compliance or reporting 

requirements under Regulation S–K and 

the proposed amendments would not 

affect these requirements. The proposed 

disclosure requirements would apply to 

small entities to the same extent as 

larger issuers. We do not believe these 

disclosures will create a significant new 

burden, and we believe this approach is 

consistent with the requirements of the 

Act. 

G. Solicitation of Comments 

We encourage the submission of 

comments with respect to any aspect of 

this Initial Regulatory Flexibility 

Analysis. In particular, we request 

comments regarding: 

• How the proposed amendments can 

achieve their objective while lowering 

the burden on small entities; 

• The number of small entities that 

may be affected by the proposed 

amendments; 

• The existence or nature of the 

potential impact of the proposed 

amendments on small entities discussed 

in the analysis; and 

• How to quantify the impact of the 

proposed amendments. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80388 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

Respondents are asked to describe the 

nature of any impact and provide 

empirical data supporting the extent of 

the impact. Such comments will be 

considered in the preparation of the 

Final Regulatory Flexibility Analysis, if 

the proposed rule amendments are 

adopted, and will be placed in the same 

public file as comments on the proposed 

amendments themselves. 

IX. Statutory Authority and Text of the 

Proposed Amendments 

The amendments contained in this 

release are being adopted under the 

authority set forth in Sections 7, 10, and 

19(a) of the Securities Act; Sections 12, 

13, 15 and 23 of the Exchange Act and 

Section 1503 of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act. 

List of Subjects in 17 CFR Parts 229, 

239 and 249 

Reporting and recordkeeping 

requirements, Securities. 

Text of the Amendments 

For the reasons set out in the 

preamble, the Commission proposes to 

amend title 17, chapter II, of the Code 

of Federal Regulations as follows: 

PART 229—STANDARD 

INSTRUCTIONS FOR FILING FORMS 

UNDER SECURITIES ACT OF 1933, 

SECURITIES EXCHANGE ACT OF 1934 

AND ENERGY POLICY AND 

CONSERVATION ACT OF 1975— 

REGULATION S–K 

1. The authority citation for part 229 

continues to read in part as follows: 

Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 

77j, 77k, 77s, 77z–2, 77z–3, 77aa(25), 

77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 777iii, 

77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 

78n, 78o, 78u–5, 78w, 78ll, 78mm, 80a–8, 

80a–9, 80a–20, 80a–29, 80a–30, 80a–31(c), 

80a–37, 80a–38(a), 80a–39, 80b–11, and 7201 

et seq.; and 18 U.S.C. 1350, unless otherwise 

noted. 

* * * * * 

2. Section 229.106 is added to read as 

follows: 

§ 229.106 (Item 106) Mine safety 

disclosure. 

(a) A registrant that is the operator, or 

that has a subsidiary that is an operator, 

of a coal or other mine shall provide the 

information specified below for the time 

period covered by the report: 

(1) For each coal or other mine of 

which the registrant or a subsidiary of 

the registrant is an operator, identify the 

mine and disclose: 

(i) 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 

Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 814) for which the 

operator received a citation from the 

Mine Safety and Health Administration. 

(ii) The total number of orders issued 

under section 104(b) of such Act (30 

U.S.C. 814(b)). 

(iii) The total number of citations and 

orders for unwarrantable failure of the 

mine operator to comply with 

mandatory health or safety standards 

under section 104(d) of such Act (30 

U.S.C. 814(d)). 

(iv) The total number of flagrant 

violations under section 110(b)(2) of 

such Act (30 U.S.C. 820(b)(2)). 

(v) The total number of imminent 

danger orders issued under section 

107(a) of such Act (30 U.S.C. 817(a)). 

(vi) The total dollar value of proposed 

assessments from the Mine Safety and 

Health Administration under such Act 

(30 U.S.C. 801 et seq.). 

Instruction to Item 106(a)(1)(vi): 

Registrants must provide the total dollar 

value of assessments proposed by 

MSHA during the period covered by the 

report, and also provide the total dollar 

value of all outstanding assessments as 

of the last day of the period covered by 

the report, regardless of whether the 

registrant has challenged or appealed 

the assessment. 

(vii) The total number of miningrelated fatalities. 

(2) A list of coal or other mines, of 

which the registrant or a subsidiary of 

the registrant is an operator, that receive 

written notice from the Mine Safety and 

Health Administration of: 

(i) 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 such 

Act (30 U.S.C. 814(e)); or 

(ii) The potential to have such a 

pattern. 

(3) For each violation, order or 

citation disclosed in response to (a)(1) 

and (a)(2) above, a brief description of 

category of violation, order or citation. 

(4) Any pending legal action before 

the Federal Mine Safety and Health 

Review Commission involving such coal 

or other mine. 

Instruction to Item 106(a)(4): The 

registrant must report any legal actions 

commenced during the time period 

covered by the report, as well as any 

developments material to a legal action 

previously reported under this 

provision occurring during the period 

covered by the report. Registrants must 

disclose the date the action was 

instituted, by whom, the name and 

location of the mine involved, and a 

brief description of the category of 

violation, order or citation underlying 

the proceeding. 

(b) Definitions. For purposes of this 

Item: 

(1) The term coal or other mine means 

a coal or other mine, as defined in 

section 3 of the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. 802), that 

is subject to the provisions of such Act 

(30 U.S.C. 801 et seq.). 

(2) The term operator has the meaning 

given the term in section 3 of the 

Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 802). 

Instructions to Item 106: 

1. The registrant must provide the 

information required by this Item as 

specified by § 229.601(b)(95) of this 

chapter. In addition, the registrant must 

provide a statement, in an appropriately 

captioned section of the periodic report, 

that the information concerning mine 

safety violations or other regulatory 

matters required by Section 1503(a) of 

the Dodd-Frank Wall Street Reform and 

Consumer Protection Act and this Item 

is included in exhibit 95 to the periodic 

report. 

2. When the disclosure required by 

this item is included in an exhibit to an 

annual report on Form 10–K, the 

information is to be provided for the 

fourth quarter of the registrant’s fiscal 

year, as well as for the entire fiscal year. 

3. Amend § 229.601 by revising 

paragraphs (a)(36) through (a)(98) in the 

exhibit table in paragraph (a), and 

adding paragraph (b)(95), to read as 

follows: 

§ 229.601 (Item 601) Exhibits. 

(a) * * * 

Exhibit Table 

* * * * * 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80389 

EXHIBIT TABLE

Securities Act forms Exchange Act forms 

S–1 S–3 S–4 1 S–8 S–11 F–1 F–3 F–4 1 10 8–K2 10–D 10–Q 10–K 

*******

* 

(36) through (94) [Reserved] ....... N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A 

(95) Mine Safety Disclosure Exhibit ........................................... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... x x 

(96) through (98) [Reserved] ....... N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A 

*******

* 

1An exhibit need not be provided about a company if: (1) With respect to such company an election has been made under Form S–4 or F–4 

to provide information about such company at a level prescribed by Form S–3 or F–3; and (2) the form, the level of which has been elected 

under Form S–4 or F–4, would not require such company to provide such exhibit if it were registering a primary offering. 2A Form 8–K exhibit is required only if relevant to the subject matter reported on the Form 8–K report. For example, if the Form 8–K pertains 

to the departure of a director, only the exhibit described in paragraph (b)(17) of this section need be filed. A required exhibit may be incorporated 

by reference from a previous filing. 

* * * * * 

(b) * * * 

(95) Mine Safety Disclosure Exhibit. A 

registrant that is an operator, or that has 

a subsidiary that is an operator, of a coal 

or other mine must provide the 

information required by Item 106 of 

Regulation S–K (§ 229.106 of this 

chapter) in an exhibit to its Exchange 

Act annual or quarterly report. For 

purposes of this Item: 

(1) The term coal or other mine means 

a coal or other mine, as defined in 

section 3 of the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. 802), that 

is subject to the provisions of such Act 

(30 U.S.C. 801 et seq.). 

(2) The term operator has the meaning 

given the term in section 3 of the 

Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 802). 

* * * * * 

PART 239—FORMS PRESCRIBED 

UNDER THE SECURITIES ACT OF 1933 

4. The authority citation for part 239 

continues to read in part as follows: 

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 

77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 

78o(d), 78u–5, 78w(a), 78ll(d), 77mm, 79e, 

79f, 79g, 79j, 79l, 79m, 79n, 79q, 79t, 404 

80a–2(a), 80a–3, 80a–8, 80a–9, 80a–10, 80a– 

13, 80a–24, 80a–26, 80a–29, 80a–30, and 

80a–37, unless otherwise noted. 

* * * * * 

5. Amend Form S–3 (referenced in 

§ 239.13) by revising General Instruction 

I.A.3.(b) to read as follows: 

Note: The text of Form S–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

FORM S–3 REGISTRATION 

STATEMENT UNDER THE 

SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

I. Eligibility Requirements for Use of 

Form S–3 * * * 

A. Registrant Requirements. * * * 

3. * * * 

(b) has filed in a timely manner all 

reports required to be filed during the 

twelve calendar months and any portion 

of a month immediately preceding the 

filing of the registration statement, other 

than a report that is required solely 

pursuant to Item 1.01, 1.02, 1.04, 2.03, 

2.04, 2.05, 2.06, 4.02(a) or 5.02(e) of 

Form 8–K (§ 249.308 of this chapter). If 

the registrant has used (during the 

twelve calendar months and any portion 

of a month immediately preceding the 

filing of the registration statement) Rule 

12b–25(b) (§ 240.12b–25(b) of this 

chapter) under the Exchange Act with 

respect to a report or a portion of a 

report, that report or portion thereof has 

actually been filed within the time 

period prescribed by that rule. 

* * * * * 

PART 249—FORMS, SECURITIES 

EXCHANGE ACT OF 1934 

6. The authority citation for part 249 

continues to read in part as follows: 

Authority: 15 U.S.C. 78a et seq. and 7201 

et seq.; and 18 U.S.C. 1350, unless otherwise 

noted. 

* * * * * 

7. Amend Form 20–F (referenced in 

§ 249.220f) by adding Item 16J, and 

adding Instruction 19 to the Instructions 

as to Exhibits, of Form 20–F, to read as 

follows: 

Note: The text of Form 20–F does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

FORM 20–F 

* * * * * 

Item 16J. Mine Safety Disclosure 

If the registrant is the operator, or has 

a subsidiary that is an operator, of a coal 

or other mine, include the information 

set forth below for the time period 

covered by the annual report. In an 

appropriately captioned section of the 

annual report, provide a statement that 

the information concerning mine safety 

violations or other regulatory matters 

required by Section 1503(a) of the DoddFrank Wall Street Reform and Consumer 

Protection Act and this Item is included 

in a specified exhibit to the annual 

report. Include the following 

information in an exhibit to the annual 

report. 

(a) For each coal or other mine of 

which the registrant or a subsidiary of 

the registrant is an operator, identify the 

mine and disclose: 

(i) 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 

Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 814) for which the 

operator received a citation from the 

Mine Safety and Health Administration. 

(ii) The total number of orders issued 

under section 104(b) of such Act (30 

U.S.C. 814(b)). 

(iii) The total number of citations and 

orders for unwarrantable failure of the 

mine operator to comply with 

mandatory health or safety standards 

under section 104(d) of such Act (30 

U.S.C. 814(d)). 

(iv) The total number of flagrant 

violations under section 110(b)(2) of 

such Act (30 U.S.C. 820(b)(2)). 

(v) The total number of imminent 

danger orders issued under section 

107(a) of such Act (30 U.S.C. 817(a)). 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80390 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

(vi) The total dollar value of proposed 

assessments from the Mine Safety and 

Health Administration under such Act 

(30 U.S.C. 801 et seq.). 

Instruction to Item 16J(a)(vi): 

Registrants must provide the total dollar 

value of assessments proposed by 

MSHA during the period covered by the 

report, and also provide the total dollar 

value of all outstanding assessments as 

of the last day of the period covered by 

the report, regardless of whether the 

registrant has challenged or appealed 

the assessment. 

(vii) The total number of miningrelated fatalities. 

(b) A list of coal or other mines, of 

which the registrant or a subsidiary of 

the registrant is an operator, that receive 

written notice from the Mine Safety and 

Health Administration of: 

(i) 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 such 

Act (30 U.S.C. 814(e)); or 

(ii) the potential to have such a 

pattern. 

(c) For each violation, order or 

citation disclosed in response to (a) and 

(b) above, a brief description of the 

category of violation, order or citation. 

(d) Any pending legal action before 

the Federal Mine Safety and Health 

Review Commission involving such coal 

or other mine. 

Instructions to Item 16J(d): 1. Item 16J 

only applies to annual reports, and not 

to registration statements on Form 20– 

F. 

2. The exhibit described in this Item 

must meet the requirements under 

Instruction 19 as to Exhibits of this 

Form. 

3. The registrant must report any legal 

actions commenced during the time 

period covered by the report, as well as 

any developments material to a legal 

action previously reported under this 

provision occurring during the period 

covered by the report. Registrants must 

disclose the date the action was 

instituted, by whom, the name and 

location of the mine involved, and a 

brief description of the category of 

violation, order or citation underlying 

the proceeding. 

* * * * * 

Instruction to Item 16J 

For purposes of this Item: 

1. The term coal or other mine means 

a coal or other mine, as defined in 

section 3 of the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. 802), that 

is subject to the provisions of such Act 

(30 U.S.C. 801 et seq.). 

2. The term operator has the meaning 

given the term in section 3 of the 

Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 802). 

* * * * * 

INSTRUCTIONS AS TO EXHIBITS 

* * * * * 

19. The mine safety disclosure 

required by Item 16J. 

A registrant that is the operator, or 

that has a subsidiary that is an operator, 

of a coal or other mine must provide the 

information specified in Item 16J in an 

exhibit to its annual report on Form 20– 

F. 

20 through 99. [Reserved] 

* * * * * 

8. Amend Form 40–F (referenced in 

§ 249.240f) by adding Paragraph (18) to 

General Instruction B. to read as 

follows: 

* * * * * 

(18) Mine safety disclosure. If the 

registrant is the operator, or has a 

subsidiary that is an operator, of a coal 

or other mine, include the information 

set forth below for the time period 

covered by the annual report. In an 

appropriately captioned section of the 

annual report, provide a statement that 

the information concerning mine safety 

violations or other regulatory matters 

required by Section 1503(a) of the DoddFrank Wall Street Reform and Consumer 

Protection Act and this Item is included 

in a specified exhibit to the annual 

report. Include the following 

information in an exhibit to the annual 

report. 

(a) For each coal or other mine of 

which the registrant or a subsidiary of 

the registrant is an operator, identify the 

mine and disclose: 

(i) 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 

Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 814) for which the 

operator received a citation from the 

Mine Safety and Health Administration. 

(ii) The total number of orders issued 

under section 104(b) of such Act (30 

U.S.C. 814(b)). 

(iii) The total number of citations and 

orders for unwarrantable failure of the 

mine operator to comply with 

mandatory health or safety standards 

under section 104(d) of such Act (30 

U.S.C. 814(d)). 

(iv) The total number of flagrant 

violations under section 110(b)(2) of 

such Act (30 U.S.C. 820(b)(2)). 

(v) The total number of imminent 

danger orders issued under section 

107(a) of such Act (30 U.S.C. 817(a)). 

(vi) The total dollar value of proposed 

assessments from the Mine Safety and 

Health Administration under such Act 

(30 U.S.C. 801 et seq.). 

Instruction to paragraph (18)(a)(vi): 

Registrants must provide the total dollar 

value of assessments proposed by 

MSHA during the period covered by the 

report, and also provide the total dollar 

value of all outstanding assessments as 

of the last day of the period covered by 

the report, regardless of whether the 

registrant has challenged or appealed 

the assessment. 

(vii) The total number of miningrelated fatalities. 

(b) A list of coal or other mines, of 

which the registrant or a subsidiary of 

the registrant is an operator, that receive 

written notice from the Mine Safety and 

Health Administration of: 

(i) 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 such 

Act (30 U.S.C. 814(e)); or 

(ii) the potential to have such a 

pattern. 

(c) For each violation, order or 

citation disclosed in response to (a) and 

(b) above, a brief description of the 

category of violation, order or citation. 

(d) Any pending legal action before 

the Federal Mine Safety and Health 

Review Commission involving such coal 

or other mine. 

Instruction to paragraph (18)(d): The 

registrant must report any legal actions 

commenced during the time period 

covered by the report, as well as any 

developments material to a legal action 

previously reported under this 

provision occurring during the period 

covered by the report. Registrants must 

disclose the date the action was 

instituted, by whom, the name and 

location of the mine involved, and a 

brief description of the category of 

violation, order or citation underlying 

the proceeding. 

* * * * * 

Notes to Paragraph (18) of General 

Instruction B: 

For purposes of this Item: 

1. The term coal or other mine means a 

coal or other mine, as defined in section 3 

of the Federal Mine Safety and Health Act of 

1977 (30 U.S.C. 802), that is subject to the 

provisions of such Act (30 U.S.C. 801 et seq.). 

2. The term operator has the meaning given 

the term in section 3 of the Federal Mine 

Safety and Health Act of 1977 (30 U.S.C. 

802). 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80391 

3. Instruction B(18) only applies to annual 

reports, and not to registration statements on 

Form 40–F. 

* * * * * 

9. Amend Form 8–K (referenced in 

§ 249.308) by adding Item 1.04 under 

the caption ‘‘Information to Be Included 

in the Report’’ after the General 

Instructions to read as follows: 

Note: The text of Form 8–K does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form 8–K 

* * * * * 

General Instructions 

* * * * * 

Information to Be Included in the 

Report 

* * * * * 

Item 1.04 Mine Safety—Reporting of 

Shutdowns and Patterns of Violations. 

(a) If the registrant or a subsidiary of 

the registrant has received, with respect 

to a coal or other mine of which the 

registrant or a subsidiary of the 

registrant is an operator— 

• an imminent danger order issued 

under section 107(a) of the Federal Mine 

Safety and Health Act of 1977 (30 U.S.C. 

817(a)); 

• a written notice from the Mine 

Safety and Health Administration that 

the coal or other 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 

such Act (30 U.S.C. 814(e)); or 

• a written notice from the Mine 

Safety and Health Administration that 

the coal or other mine has the potential 

to have such a pattern, disclose the 

following information: 

(1) The date of receipt by the issuer 

or a subsidiary of such order or notice. 

(2) A brief description of the category 

of order or notice. 

(3) The name and location of the mine 

involved. 

Instructions to Item 1.04. 

1. The term ‘‘coal or other mine’’ 

means a coal or other mine, as defined 

in section 3 of the Federal Mine Safety 

and Health Act of 1977 (30 U.S.C. 802), 

that is subject to the provisions of such 

Act (30 U.S.C. 801 et seq.). 

2. The term ‘‘operator’’ has the 

meaning given the term in section 3 of 

the Federal Mine Safety and Health Act 

of 1977 (30 U.S.C. 802). 

* * * * * 

10. Amend Form 10–Q (referenced in 

§ 249.308a) by adding Item 4 in Part II 

to read as follows: 

Note: The text of Form 10–Q does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

FORM 10–Q 

* * * * * 

PART II 

* * * * * 

Item 4. Specialized Disclosures * * * 

If applicable, provide a statement that 

the information concerning mine safety 

violations or other regulatory matters 

required by Section 1503(a) of the DoddFrank Wall Street Reform and Consumer 

Protection Act and Item 106 of 

Regulation S–K (17 CFR 229.106) is 

included in exhibit 95 to the quarterly 

report. 

* * * * * 

11. Amend Form 10–K (referenced in 

§ 249.310) by adding paragraph (b) to 

Item 4 in Part I to read as follows: 

Note: The text of Form 10–K does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

FORM 10–K 

* * * * * 

PART I 

* * * * * 

Item 4. Specialized Disclosures * * * 

(b) If applicable, provide a statement 

that the information concerning mine 

safety violations or other regulatory 

matters required by Section 1503(a) of 

the Dodd-Frank Wall Street Reform and 

Consumer Protection Act and Item 106 

of Regulation S–K (17 CFR 229.106) is 

included in exhibit 95 to the annual 

report. 

* * * * * 

By the Commission. 

Dated: December 15, 2010. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2010–31941 Filed 12–21–10; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 40 

[Docket No. RM10–8–000] 

Electric Reliability Organization 

Interpretations of Interconnection 

Reliability Operations and 

Coordination and Transmission 

Operations Reliability Standards 

Issued December 16, 2010. 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Under section 215 of the 

Federal Power Act (FPA), the Federal 

Energy Regulatory Commission 

(Commission) proposes to approve the 

North American Electric Reliability 

Corporation’s (NERC) proposed 

interpretation of certain specific 

requirements of the Commissionapproved Reliability Standards, TOP– 

005–1, Operational Reliability 

Information, and IRO–005–1, Reliability 

Coordination—Current-Day Operations. 

Specifically, the interpretation 

addresses whether a Special Protection 

System (or SPS) that is operating with 

only one communication channel in 

service is ‘‘degraded’’ under these 

standards. The Commission proposes to 

approve the interpretation, discussed 

below, as being consistent with and not 

expanding or changing the existing 

Reliability Standards. However, to 

address Commission concerns that the 

interpretation fails to specify that a 

Special Protection System that has lost 

a communication channel be reported, 

the Commission also proposes to direct 

NERC pursuant to section 215 (d)(5) of 

the FPA to develop modifications to the 

TOP–005–1 and IRO–005–1 Reliability 

Standards, as discussed below, through 

its Reliability Standards development 

process. The Commission seeks 

comments on its proposal. 

DATES: Comments are due February 7, 

2011. 

ADDRESSES: You may submit comments, 

identified by docket number and in 

accordance with the requirements 

posted on the Commission’s Web site, 

http://www.ferc.gov. Comments may be 

submitted by any of the following 

methods: 

• Agency Web Site: Documents 

created electronically using word 

processing software should be filed in 

native applications or print-to-PDF 

format, and not in a scanned format, at 


srobinson on DSKHWCL6B1PROD with PROPOSALS