SEC Adopts Dodd-Frank Mine Safety Disclosure Requirements

By Final Rule dated December 21, the SEC has adopted new rules outlining how mining companies must disclose the mine safety information required by the Dodd-Frank Act, including the addition of Item 1.04 to Current Report Form 8-K.  Section 1503 Dodd-Frank requires mining companies to include information about mine safety and health in the quarterly and annual reports filed with the SEC. The Dodd-Frank Act disclosure requirements are based on the safety and health requirements that apply to mines under the Federal Mine Safety and Health Act of 1977, which is administered by the Mine Safety and Health Administration (MSHA). 

The SEC adopted amendments to periodic Forms 10-K, 10-Q, 20-F and 40-F to require the disclosure mandated by Section 1503(a) of the Dodd-Frank Act; adopted new Item 104 of Regulation S-K, which sets forth the disclosure requirements for Forms 10-K and 10-Q, and amended Item 601 of Regulation S-K to add a new exhibit to Forms 10-K and 10-Q for provision of this information.  The new Form 8-K Item 1.04 implements the requirements imposed by Section 1503(b) of Dodd-Frank, and the SEC amended Form S-3 to add the new item to the list of Form 8-K items the untimely filing of which will not result in loss of Form S-3 eligibility. 

The SEC estimates that, of the approximately 13,500 Form 10-Ks filed annually, approximately 100 are filed by companies that operate, or have a subsidiary that operates, a mine subject to the Mine Act, and that therefore will be affected by the rule and form amendments.  Of the 942 Form 20-F and 205 Form 40-F annual reports filed by foreign private issuers, approximately 30 are filed by companies that  would be affected by the rule and form amendments.  The final rules, which  require disclosure on a mine-by-mine basis, take effect 30 days after publication in the Federal Register.

SEC Restricts Confidential Filing by Foreign Private Issuers

In order to promote transparency and investor protection, the SEC’s Division of Corporation Finance announced on December 8 a change to its traditional policy with respect to the confidential non-public submission of initial registration statements by foreign private issuers.  The longstanding policy was the reason that non-U.S. issuers generally were able to go public not long after they filed their registration statements. 

Foreign companies were allowed to file their registrations confidentially with the SEC, and to go through several rounds of comments without publicly registering.  By completing the rounds of comments before filing publicly, non-U.S. issuers usually spent very little time in registration before making their debuts.

New Policy: the staff will review initial registration statements of foreign issuers that are submitted on a non-public basis only where the registrant is a foreign government registering its debt securities, a foreign private issuer listed on a non-U.S. exchange, a foreign private issuer that is being privatized by a foreign government, or a foreign private issuer that can demonstrate that the public filing of an initial registration statement would conflict with the law of an applicable foreign jurisdiction.  In addition, shell companies, blank check companies and issuers with no, or substantially no, business operations will not be permitted to use the non-public submission procedure.

The previous policy was partially based on the fact that, historically, the majority of foreign private issuers registering securities with the SEC were also having their securities traded on a foreign securities exchange, and the foreign market ordinarily did not have a practice of requiring public disclosure of the registration statement before completion of review. More recently, however, the vast majority of foreign private issuers using this non-public review procedure have not contemplated listing securities outside the U.S.

EDGAR System Upgraded, Supports Schedule 14N Filings & 8-K Item 5.08

As reported in this space on August 30, 2010, the SEC adopted new rules to require companies to include shareholder-nominated director candidates in their proxy materials under certain circumstances.  The final rules were published in the Federal Register on September 16, 2010, with the effective date of November 15, 2010.  However, by order on October 4, 2010, the SEC issued a stay on their effectiveness until resolution of a legal challenge to the validity of the proxy access rules in the United States Court of Appeals. 

The SEC's final rule release published in the Federal Register on September 20, 2011, noted that the Court's mandate concluded the litigation, did not affect the amendment to the shareholder proposal rule (Exchange Act 14a-8, which was not challenged in the litigation), and the stay expired by its terms. 

On September 26, 2011, the Schedule 14N submission form types (SC 14N, SC 14N-S, and their amendments) were made available for use on EDGARLink Online.  Form 8-K Item 5.08 (Shareholder Director Nominations) was also made available for use on submission form types 8-K, 8-K12B, 8-K12G3 and 8-K15D5.  By Final Rule dated November dated November 21 and effective November 29, 2011, the SEC adopted revisions to the EDGAR Filer Manual to reflect the updates to the EDGAR system.