As discussed in more detail above, we are adopting new rule and
form amendments to 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 adopting new Items 104 and 601(b)(95) of Regulation S-K and
amending Forms 10-Q, 10-K, 20-F and 40-F under the Exchange Act to
implement the disclosure requirement set forth in Section 1503(a) of
the Act. We are adopting new Item 1.04 of Form 8-K to implement the
requirement of Section 1503(b) of the Act. In addition, we are amending
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. We note that 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 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 mine operators to report immediately any death of an
individual at a mine,\200\ which MSHA then makes available to the
public through its data retrieval system on its Web site, http://www.msha.gov. MSHA's disclosure requirement applies to all mine
operators under MSHA's jurisdiction, while the disclosure requirement
of Section 1503(a)(1)(G) of the Act requires reporting by a subset of
that group, specifically, issuers that are required to file reports
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act and that are operators (or have a subsidiary that is an operator)
of a coal or other mine. We note that, while there is some overlap, the
disclosure requirement of Section 1503(a)(1)(G) of the Act is currently
in effect by operation of the statute, and the amendments we are
adopting simply incorporate the Act's requirements into our rules and
forms. We believe our rules must incorporate this provision of the Act
in order to be consistent with the Act.
---------------------------------------------------------------------------

    \200\ See 30 CFR 50.10.
---------------------------------------------------------------------------

    Most of the information called for by the new disclosure
requirements is publicly disclosed by MSHA and readily available to
issuers, who receive notices, orders and citations directly from MSHA
and can also access the information via MSHA's data retrieval system.
Information regarding pending legal actions is known to issuers, and
certain information about orders and citations that are in contest
before the FMSHRC is also available via MSHA's data retrieval system.
Further, as noted above, the disclosure item for periodic reports
requiring disclosure of mining-related fatalities is already subject to
a collection of information under MSHA regulations,\201\ and fatality
information also is made public via MSHA's data retrieval system. Our
amendments incorporate the Act's requirements into Regulation S-K and
related forms.
---------------------------------------------------------------------------

    \201\ 30 CFR 50.10 and 50.20.
---------------------------------------------------------------------------

    We anticipate that new Items 104 and 601(b)(95) of Regulation S-K
will increase the disclosure burdens for annual reports on Form 10-K
and quarterly reports on Form 10-Q that existed prior to enactment of
the Act. Because Regulation S-K does not apply directly to Forms 20-F
and 40-F,\202\ we are amending those forms to include the same
disclosure requirements as those applicable to issuers that are not
foreign private issuers, and therefore we anticipate that the
disclosure burdens that existed prior to the enactment of the Act for
annual reports on Forms 20-F and 40-F will increase.\203\ We anticipate
that new Item 1.04 of Form 8-K will increase the disclosure burden that
existed prior to enactment of the Act 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.
---------------------------------------------------------------------------

    \202\ While 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.
    \203\ See new Item 16H under Part II of Form 20-F and paragraph
(16) to General Instruction B of Form 40-F.
---------------------------------------------------------------------------

    Compliance with the amendments by affected issuers will be
mandatory. Responses to the information collections will not be kept
confidential, and there will be no mandatory retention period for the
information disclosed.

C. Summary of Comment Letters and Revisions to Proposals

    In the Proposing Release, we requested comment on the PRA analysis.
We received one comment letter that addressed our overall burden
estimates for the proposed amendments.\204\ The commentator stated its
belief that the estimates included in the Proposing Release were on the
low end of the scale. The commentator noted its view that, due to the
number and variety of operations that must be included in the reports
and the corporate structure and segregation of responsibilities that
are required in a multinational organization with a number of
individual operating subsidiaries, the estimate of burden hours to
manage, assemble, track, verify and prepare the reports should be
higher. In the commentator's experience, the necessary internal
procedures and controls to accurately assemble, track and report the
Section 1503 mine safety information and the actual hourly burden alone
would be 10 to 15 times the estimate made by the Commission, and the
outside professional burden would likewise be several orders of
magnitude greater than the estimate.
---------------------------------------------------------------------------

    \204\ See letter from Rio Tinto.
---------------------------------------------------------------------------

    After consideration of the comment received, we have increased the
hours and costs from the proposal, although we have not increased such
estimates by the magnitude suggested by the commentator, taking into
account several substantive modifications we have made to the proposed
amendments. We are adopting final rules that in some respects are less
burdensome than the proposals. We have simplified the reporting of
information with respect to proposed assessments of penalties and
pending legal actions, and we are not adopting the proposed additional
disclosure item. We also have changed the time period requirement for
periodic reporting in a manner that will lessen the burden for issuers
by requiring disclosure only for the period covered by the report.
Therefore, we have adjusted our estimates to reflect a decrease in
hours and costs from the proposal, but also reflecting an increase in
hours and costs based on the comment received.

D. Revisions to PRA Reporting and Cost Burden Estimates

    We anticipate that the rule and form amendments will increase the
burdens and costs for issuers subject to the amendments. For purposes
of the PRA, in the Proposing Release we estimated the total annual
increase in paperwork burden for all affected companies to comply with
the 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 included the
time and the cost of implementing disclosure controls and procedures,
preparing and reviewing disclosure, filing documents and retaining
records.

As discussed above, as a result of the changes we have made from the
proposals, and taking into consideration the comment received, we are
increasing the total PRA burden and cost estimates that we originally
submitted to OMB in connection with the proposed amendments. We
estimate the annual incremental paperwork burden for all companies to
prepare the disclosure required under our rule amendments to be
approximately 5,775 hours of company personnel time and approximately
$1,090,000 for the services of outside professionals.
    In deriving our new 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; 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 new burden hour and cost 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 such information via MSHA's publicly
available data retrieval system. Information regarding pending legal
actions is known to issuers, and certain information about orders and
citations that are in contest before the FMSHRC is also available via
MSHA's data retrieval system. Further, mine operators are required by
MSHA regulations to report all fatalities to MSHA immediately, and
information about mining-related fatalities also is made public via
MSHA's data retrieval system. In preparing the burden hour and cost
estimates, we took into consideration the number of issuers that filed
reports with the Commission including information required under
Section 1503 since its effective date.
1. Regulation S-K
    While the rule and form amendments 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 retaining 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 matters in Commission filings in accordance with Section
1503 of the Act, we estimate that, of the 13,545 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. For
purposes of the PRA, we assume that each such filer would have
disclosures about mine safety matters to include in its Form 10-K, and
that preparation of the Form 10-K disclosure would involve gathering
the information for the fourth quarter of the fiscal year,
consolidating it with information reported in the prior quarters of the
fiscal year, and formatting the information for inclusion in the annual
report. We estimate that the rule and form amendments would add 20
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 matters 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 rule and form amendments. For purposes of the PRA, we assume that
each such filer would have disclosures about mine safety matters to
include in its Form 20-F. We estimate that the rule and form amendments
would add 40 burden hours to the total burden hours required to produce
each Form 20-F.
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 matters 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 rule and form amendments. For purposes of the PRA, we assume that
each such filer would have disclosures about mine safety matters to
include in its Form 40-F. As with Form 20-F, we estimate that the rule
and form amendments would add 40 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 matters in Commission filings in accordance with Section
1503 of the Act, we estimate that, of the 32,462 Form 10-Qs filed
annually, approximately 300 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 rule and form amendments.\205\
For purposes of the PRA, we assume that each such filer would have
disclosures about mine safety matters to include in each Form 10-Q. We
further estimate that the rule and form amendments would add 15 burden
hours to the total burden hours required to produce each Form 10-Q.
---------------------------------------------------------------------------

    \205\ We estimate that approximately 100 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. 100 companies x 3 Forms 10-Q per
year=300 Forms 10-Q.
---------------------------------------------------------------------------

6. Form 8-K
    We estimate that companies annually file 116,860 Form 8-Ks. Only
companies that are not foreign private issuers and are operators, or
have subsidiaries that are operators, of mines subject to the Mine Act
are required to comply with the new Form 8-K

requirement. For purposes of the PRA, we estimate that there will be
approximately 100 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 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 relatively rare, while the
triggering event set forth in Section 1503(b)(1)--the receipt of an
imminent danger order--is more common.\206\ For purposes of this
calculation, we assume that each potential filer under Item 1.04 of
Form 8-K would file four Forms 8-K per year under new Item 1.04 and we
estimate that the amendments to Form 8-K would add 2 burden hours to
the total burden hours required to produce each Form 8-K.
---------------------------------------------------------------------------

    \206\ See 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 Web site, 549, 630 and
562 imminent danger orders under Section 107(a) were issued during
fiscal 2011, 2010 and 2009, respectively. See Violations Data Set
(as of December 9, 2011), 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.
---------------------------------------------------------------------------

E. Summary of 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
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 new disclosure requirements.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Current                                                         Current        Increase in       Proposed
                  Form                      annual    Current burden    Increase in      Proposed       professional     professional     professional
                                           response        hours       burden hours    burden hours      costs  ($)       costs  ($)       costs  ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-K...................................       13,545      21,361,898           1,500      21,363,398     2,848,253,000         200,000     2,848,453,000
20-F...................................          942         622,871             150         623,021       743,047,230         180,000       743,227,230
40-F...................................          205          21,884             150          22,034        26,260,500         180,000        26,440,500
10-Q...................................       32,462       4,559,793           3,375       4,563,168       607,972,400         450,000       608,422,400
8-K....................................      116,860         502,839             600         503,439        67,045,200          80,000        67,125,200
--------------------------------------------------------------------------------------------------------------------------------------------------------

IV. Cost-Benefit Analysis

A. Introduction

    We are adopting the rule and form amendments discussed in this
release to implement the disclosure requirements set forth in Section
1503 of 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 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.
Mine operators receive the relevant notices, citations and similar
information directly from MSHA, and this information is publicly
available on MSHA's data retrieval system on its Web site on a mine-by-
mine basis.\207\ Information regarding pending legal actions is known
to issuers, and certain information about orders and citations that are
in contest before the FMSHRC is also available via MSHA's data
retrieval system. Further, mine operators are required by MSHA
regulations to report all fatalities to MSHA immediately, and
information about mining-related fatalities also is made public via
MSHA's data retrieval system. Therefore, we believe most of the
information required to be disclosed under Section 1503 of the Act and
our final 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 developed the necessary
controls and procedures to review and prepare the information required
by Section 1503 of the Act for filing with the Commission.
---------------------------------------------------------------------------

    \207\ See http://www.msha.gov/DRS/DRSHOME.HTM.
---------------------------------------------------------------------------

    We are adopting 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. New Item 104 of Regulation S-K, new Item 16H of Form 20-F and
new Paragraph (16) of General Instruction B of Form 40-F detail the
information to be disclosed in accordance with Section 1503(a) of the
Act, and the amendment to Item 601 of Regulation S-K sets forth the
exhibit requirement for Form 10-K and Form 10-Q for the information
required to be disclosed under Item 104 of Regulation S-K. We are also
adopting 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 are
amending 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.
    We did not receive any comment letters addressing the cost-benefit
analysis included in the Proposing Release. The Commission is sensitive
to the costs and benefits that will be imposed by the 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 costs 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.
    The final rule adheres closely to the statutory mandate, which is
already in effect. We have determined not to adopt the proposed
requirements to provide additional disclosure in periodic reports
addressing the categories of violations, orders or citations disclosed
in response to the Section 1503(a) disclosure requirement, or total
dollar values of proposed penalty assessments from MSHA outstanding as
of the end of a reporting period. We are adopting a requirement to
disclose the total number of legal actions involving each mine that
were pending before the FMSHRC as of the last day of the reporting
period, the aggregate number of legal actions instituted and the number
resolved during the reporting period, and the numbers of such legal
actions in specified categories, rather than the more burdensome
proposed requirement to provide more detailed descriptions of legal
actions pending before the FMSHRC and developments material to
previously reported pending legal actions. As a consequence, we believe
that the vast majority of the costs and benefits of our final rules are
attributable to the provisions of Section 1503.

B. Benefits

    The amended rules we are adopting today are intended to implement
the requirements of Section 1503 of the Act. Our Regulation S-K and
form amendments implement the requirements of the Act by reiterating
the disclosure items listed in Section 1503, which are currently in
effect. Our rule and form amendments 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. We believe this should simplify the disclosure
obligation, promote comparability and consistency of disclosure across
issuers and time periods, and make the information more accessible for
users, which will benefit investors in their consideration of
information about issuers' mine health and safety matters.
    We believe that the requirement to disclose the total number of
legal actions involving each mine that were pending before the FMSHRC
as of the last day of the reporting period, the aggregate number of
legal actions instituted, the number resolved during the reporting
period and the numbers of legal actions in specified categories will
provide useful information to users about overall developments in legal
actions and the extent of the mine operators' involvement in legal
actions.
    Our amendment to Form 8-K requires 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 new Item 1.04. Our 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 will provide issuers and investors with certainty about the
timing of that disclosure requirement.

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, for the most part, is readily
available to issuers via MSHA's data retrieval system. Certain
information, such as information regarding pending legal actions and
mining-related fatalities, is known to issuers, although they may have
had to adopt new procedures to capture and report the information in
order to comply with Section 1503. The primary costs to result from
this rulemaking are costs associated with the formatting and filing of
the information. We believe that there are no significant incremental
costs imposed as a result of our codification of the Section 1503
requirements.\208\
---------------------------------------------------------------------------

    \208\ For purposes of the PRA, we estimate the total cost of the
disclosure to be approximately 5,775 hours of company personnel time
and approximately $1,090,000 for the services of outside
professionals. However, this amount reflects the costs associated
with the disclosure requirement set forth in Section 1503 of the
Act. We do not believe our rules, which implement Section 1503,
impose any additional costs beyond those imposed by the statute.
---------------------------------------------------------------------------

V. 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 \209\ 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.
---------------------------------------------------------------------------

    \209\ 15 U.S.C. 78w(a).
---------------------------------------------------------------------------

    Section 2(b) \210\ of the Securities Act and Section 3(f) \211\ 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.
---------------------------------------------------------------------------

    \210\ 15 U.S.C. 77b(b).
    \211\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    We did not receive any comment letters addressing the discussion of
these issues included in the Proposing Release. The amendments we are
adopting will implement the requirements of Section 1503 of the Act,
which imposed the substance of the disclosure requirements set forth in
our new rules. We are not imposing any additional requirements in our
rulemaking that will impose a burden on competition or have a
significant impact on capital formation.
    We believe that the rule and form amendments we are adopting 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 restrict
the ability of the company to raise capital or increase an issuer's
costs relating to capital raising, and may be a disproportionately
large negative consequence of an untimely filing of a Form 8-K. To
address this potential burden, we are revising 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.

VI. Final Regulatory Flexibility Act Analysis

    This Final Regulatory Flexibility Analysis has been prepared in
accordance with the Regulatory Flexibility Act.\212\ It relates to
revisions to Regulation S-K and forms under the Securities Act and the
Exchange Act regarding disclosure about mine safety.
---------------------------------------------------------------------------

    \212\ 5 U.S.C. 601.
---------------------------------------------------------------------------

A. Reasons for, and Objectives of, the Proposed Action

    We are adopting rule amendments to implement the disclosure
requirements set forth in Section 1503 of 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. Significant Issues Raised by Public Comments

    In the Proposing Release, we requested comment on any aspect of the
Initial Regulatory Flexibility Analysis (``IRFA''), including how the
proposed amendments could achieve their objective while lowering the
burden on small entities, the number of small entities that would be
affected by the proposed amendments, the 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. We did not
receive comments specifically addressing the IRFA. However, several
commentators addressed aspects of the proposed rule amendments that
could potentially affect small entities. In particular, several
commentators stated their belief that smaller companies should not be
exempted from all or part of the amendments,\213\ while only one
commentator urged that we adopt a modified reporting system for smaller
companies.\214\
---------------------------------------------------------------------------

    \213\ See letters from AFL-CIO, CalPERS, CalSTRS, EARTHWORKS,
NMA, Rio Tinto, SIF, Trillium and UMWA.
    \214\ See letter from Estess.
---------------------------------------------------------------------------

C. Small Entities Subject to the Final Amendments

    The amendments will affect some companies that are small entities.
The Regulatory Flexibility Act defines ``small entity'' to mean ``small
business,'' ``small organization,'' or ``small governmental
jurisdiction.'' \215\ 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 \216\ and Exchange Act Rule 0-10(a) \217\
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. The new
rules will affect small entities that (i) are required to file reports
under Section 13(a) or 15(d) of the Exchange Act and (ii) operate, or
have a subsidiary that operates, a coal or other mine that is subject
to the Mine Act, 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.
---------------------------------------------------------------------------

    \215\ 5 U.S.C. 601(6).
    \216\ 17 CFR 230.157.
    \217\ 17 CFR 240.0-10(a).
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The disclosure requirements are intended to implement the
disclosure requirements set forth in Section 1503 of the Act. These
amendments require small entities that are required to file reports
under Section 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 will 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
amending 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. New Item 104 of
Regulation S-K, new Item 16H of Form 20-F and new Paragraph (16) of
General Instruction B of Form 40-F detail the information to be
disclosed in accordance with Section 1503(a) of the Act, and the
amendment to Item 601 of Regulation S-K sets forth the exhibit
requirement for Form 10-K and Form 10-Q for the information required to
be disclosed under new Item 104 of Regulation S-K. We are also adopting
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 are
amending 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. Agency Action To Minimize Effect on Small Entities

    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
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 Section 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 amendments implement the
disclosure requirements set forth in Section 1503 of 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.
    Our amendments would require clear and straightforward disclosure
of the information required by Section 1503 of the Act. We generally
have used design rather than performance standards in connection with
the 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 amendments will 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.
However, we note that, although we encourage tabular presentation, we
are not adopting a particular presentation requirement for the
disclosure, so that each issuer has flexibility to adopt a presentation
it believes is appropriate for its disclosure. We proposed additional
disclosure requirements that would have given greater context to the
information required to be disclosed by Section 1503. After further
consideration, we are not requiring such additional

disclosure, but issuers are permitted to include additional disclosure
if they choose to do so.
    Currently, small entities are subject to some different compliance
or reporting requirements under Regulation S-K and the amendments would
not affect these requirements. The disclosure requirements will 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.

VII. Statutory Authority and Text of The 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 amends
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

0
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.
* * * * *

0
2. Section 229.104 is added to read as follows:

Sec.  229.104  (Item 104) 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 104(a)(1)(vi): Registrants must provide the
total dollar value of assessments proposed by MSHA relating to any type
of violation during the period covered by the report, regardless of
whether the registrant has challenged or appealed the assessment.
    (vii) The total number of mining-related fatalities.
    Instruction to Item 104(a)(1)(vii): Registrants must report all
fatalities occurring at a coal or other mine during the period covered
by the report unless the fatality has been determined by MSHA to be
unrelated to mining activity.
    (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) Any pending legal action before the Federal Mine Safety and
Health Review Commission involving such coal or other mine.
    Instruction to Item 104(a)(3): The registrant must report the total
number of legal actions that were pending before the Federal Mine
Safety and Health Review Commission as of the last day of the time
period covered by the report, as well as the aggregate number of legal
actions instituted and the aggregate number of legal actions resolved
during the reporting period. With respect to the total number of legal
actions that were pending before the Federal Mine Safety and Health
Review Commission as of the last day of the time period covered by the
report, the registrant must also report the number of such legal
actions that are:
    1. Contests of citations and orders referenced in Subpart B of 29
CFR part 2700;
    2. Contests of proposed penalties referenced in Subpart C of 29 CFR
part 2700;
    3. Complaints for compensation referenced in Subpart D of 29 CFR
part 2700;
    4. Complaints of discharge, discrimination or interference
referenced in Subpart E of 29 CFR part 2700;
    5. Applications for temporary relief referenced in Subpart F of 29
CFR part 2700; and
    6. Appeals of judges' decisions or orders to the Federal Mine
Safety and Health Review Commission referenced in Subpart H of 29 CFR
part 2700.
    (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).
    (3) The term subsidiary has the meaning given the term in Exchange
Act Rule 12b-2 (17 CFR 240.12b-2).
    Instructions to Item 104:
    1. The registrant must provide the information required by this
Item as specified by Sec.  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.
0
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 registrant's fiscal year.

0
3. Amend Sec.  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:

Sec.  229.601  (Item 601) Exhibits.

    (a) * * *
Exhibit Table
* * * * *

                                                                      Exhibit Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Securities Act Forms                                 Exchange Act Forms
                                                 -------------------------------------------------------------------------------------------------------
                                                                    S-4                                     F-4             8-K
                                                    S-1     S-3     \1\     S-8    S-11     F-1     F-3     \1\     10      \2\    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]....................  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ An 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.
\2\ A 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 104 of
Regulation S-K (Sec.  229.104 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).
    (3) The term subsidiary has the meaning given the term in Exchange
Act Rule 12b-2 (17 CFR 240.12b-2).
* * * * *

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

0
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.
* * * * *

0
5. Amend Form S-3 (referenced in Sec.  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 (Sec.
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) (Sec.  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

0
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.

* * * * *

0
7. Amend Form 20-F (referenced in Sec.  249.220f) by adding Item 16H,
and adding Instruction 16 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 16H.  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 Dodd-Frank
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 Item 16H(a)(vi): Registrants must provide the total
dollar value of assessments proposed by MSHA relating to any type of
violation during the period covered by the report, regardless of
whether the registrant has challenged or appealed the assessment.
    (vii) The total number of mining-related fatalities.
    Instruction to Item 16H(a)(vii): Registrants must report all
fatalities occurring at a coal or other mine during the period covered
by the report unless the fatality has been determined by MSHA to be
unrelated to mining activity.
    (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) Any pending legal action before the Federal Mine Safety and
Health Review Commission involving such coal or other mine.
    Instructions to Item 16H(c): The registrant must report the total
number of legal actions that were pending before the Federal Mine
Safety and Health Review Commission as of the last day of the time
period covered by the report, as well as the aggregate number of legal
actions instituted and the aggregate number of legal actions resolved
during the reporting period. With respect to the total number of legal
actions that were pending before the Federal Mine Safety and Health
Review Commission as of the last day of the time period covered by the
report, the registrant must also report the number of such legal
actions that are (a) contests of citations and orders referenced in
Subpart B of 29 CFR Part 2700; (b) contests of proposed penalties
referenced in Subpart C of 29 CFR Part 2700; (c) complaints for
compensation referenced in Subpart D of 29 CFR Part 2700; (d)
complaints of discharge, discrimination or interference referenced in
Subpart E of 29 CFR Part 2700; (e) applications for temporary relief
referenced in Subpart F of 29 CFR Part 2700; and (f) appeals of judges'
decisions or orders to the Federal Mine Safety and Health Review
Commission referenced in Subpart H of 29 CFR Part 2700.
* * * * *

Instructions to Item 16H

    1. Item 16H 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. For purposes of this Item:
    a. 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.).
    b. 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).
    c. The term subsidiary has the meaning given the term in Exchange
Act Rule 12b-2 (17 CFR 240.12b-2).
* * * * *

INSTRUCTIONS AS TO EXHIBITS

* * * * *
    16. The mine safety disclosure required by Item 16H.
    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 16H in an exhibit to its annual report on Form 20-F.
    17 through 99 [Reserved]
* * * * *

0
8. Amend Form 40-F (referenced in Sec.  249.240f) by adding Paragraph
(16) to General Instruction B to read as follows:
* * * * *
    (16) 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 Dodd-Frank 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 (16)(a)(vi): Registrants must provide the
total dollar value of assessments proposed by MSHA relating to any type
of violation during the period covered by the report, regardless of
whether the registrant has challenged or appealed the assessment.
    (vii) The total number of mining-related fatalities.
    Instruction to paragraph (16)(a)(vii): Registrants must report all
fatalities occurring at a coal or other mine during the period covered
by the report unless the fatality has been determined by MSHA to be
unrelated to mining activity.
    (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) Any pending legal action before the Federal Mine Safety and
Health Review Commission involving such coal or other mine.
    Instruction to paragraph (16)(c): The registrant must report the
total number of legal actions that were pending before the Federal Mine
Safety and Health Review Commission as of the last day of the time
period covered by the report, as well as the aggregate number of legal
actions instituted and the aggregate number of legal actions resolved
during the reporting period. With respect to the total number of legal
actions that were pending before the Federal Mine Safety and Health
Review Commission as of the last day of the time period covered by the
report, the registrant must also report the number of such legal
actions that are (a) contests of citations and orders referenced in
Subpart B of 29 CFR part 2700; (b) contests of proposed penalties
referenced in Subpart C of 29 CFR part 2700; (c) complaints for
compensation referenced in Subpart D of 29 CFR part 2700; (d)
complaints of discharge, discrimination or interference referenced in
Subpart E of 29 CFR part 2700; (e) applications for temporary relief
referenced in Subpart F of 29 CFR part 2700; and (f) appeals of judges'
decisions or orders to the Federal Mine Safety and Health Review
Commission referenced in Subpart H of 29 CFR part 2700.
* * * * *
    Notes to Paragraph (16) 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).
    3. The term subsidiary has the meaning given the term in Exchange
Act Rule 12b-2 (17 CFR 240.12b-2).
    4. Instruction B(16) only applies to annual reports, and not to
registration statements on Form 40-F.
* * * * *

0
9. Amend Form 8-K (referenced in Sec.  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) The category of the 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).
* * * * *

0
10. Amend Form 10-Q (referenced in Sec.  249.308a) by revising General
Instruction H.2.b to delete the reference to Item 4, Submission of
Matters to a Vote of Security Holders, and 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.  Mine Safety Disclosures * * *

    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 104 of Regulation S-K (17 CFR 229.104) is included in
exhibit 95 to the quarterly report.
* * * * *

0
11. Amend Form 10-K (referenced in Sec.  249.310) by revising General
Instructions I(2)(c) and J(1)(e) to delete the references to Item 4,
Submission of Matters to a Vote of Security Holders, and adding 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.  Mine Safety Disclosures * * *

    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 104 of Regulation S-K (17 CFR 229.104) is included in
exhibit 95 to the annual report.
* * * * *

    By the Commission.

    Dated: December 21, 2011.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-33148 Filed 12-27-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 82, Number 91 (Friday, May 12, 2017)]
[Notices]
[Pages 22170-22173]
[FR Doc No: 2017-09607]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80619; File No. SR-NYSEMKT-2017-23]

Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of
Proposed Rule Change To Harmonize the Requirements of the NYSE MKT
Company Guide With Respect to Periodic Reporting With Those of the NYSE

May 8, 2017.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on April 25, 2017, NYSE MKT LLC (the ``Exchange'' or ``NYSE
MKT'') filed with the Securities and Exchange Commission (the ``SEC''
or ``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to harmonize the requirements of the NYSE MKT
Company Guide (the ``Company Guide'') with respect to periodic
reporting with those of the NYSE. The proposed rule change is available
on the Exchange's Web site at www.nyse.com, at the principal office of
the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to harmonize the requirements of the Company
Guide with respect to periodic reporting with those of the NYSE. A
consistent approach among the two NYSE sister exchanges will avoid
confusion among investors and companies and their service providers
about the applicable rules. Currently, the Exchange provides companies
that are late in making required filings with a compliance plan under
its general provisions for companies that are non-compliant with
Exchange rules, as set forth in Section 1009 of the Company Guide.
Section 1009 gives the Exchange the discretion to grant companies up to
18 months to cure events of noncompliance and does not provide specific
guidance with respect to how compliance periods should be administered
for companies late in submitting their filings. By contrast, Section
802.01E of the NYSE Listed Company Manual limits companies to a maximum
cure period of 12 months to submit all delayed filings and includes
specific provisions for determining how much time companies should be
given to cure within the context of that maximum 12 months and what is
required to be eligible for that additional time. As such, the Exchange
believes that the NYSE's process for dealing with delayed filings is
more stringent and more transparent than its own and believes that it
is appropriate to harmonize its own process with that of the NYSE. The
Exchange also proposes to harmonize its requirements with respect to
semi-annual reporting by foreign private issuers with that of the NYSE,
as the NYSE requirement is more precise. This greater precision will
enable the Exchange to subject this semi-annual reporting obligation to
the same compliance regime as it is proposing for other delayed
filings.
Semi-Annual Reporting by Foreign Private Issuers
    Section 110(d) of the Company Guide currently requires all foreign-
incorporated listed companies to publish, at least semi-annually, an
English language version of their interim financial statements. As part
of its harmonization with the rules of the NYSE and adoption of a more
explicit compliance approach,\4\ the Exchange proposes to adopt new
Section 110(e) as a more specific interim reporting requirement for
listed foreign private issuers.\5\ Under proposed Section 110(e), each
listed foreign private issuer will be required, at a minimum, to submit
to the SEC a Form 6-K that includes (i) an interim balance sheet as of
the end of its second fiscal quarter and (ii) a semi-annual income
statement that covers its first two fiscal quarters. This Form 6-K must
be submitted no later than six months following the end of the
company's second fiscal quarter. The financial information included in
the Form 6-K must be presented in English, but does not have to be
reconciled to U.S. GAAP.
---------------------------------------------------------------------------

    \4\ See Section 203.03 of the NYSE Listed Company Manual.
    \5\ Foreign-incorporated listed companies that are not foreign
private issuers are required to file quarterly reports on Form 10-Q
as domestic filers, so proposed Section 110(e) is not relevant to
them. Existing Section 110(e) will be renumbered as Section 110(f).
---------------------------------------------------------------------------

Amendments to Chapter Six of the Company Guide
    Section 610(a) currently requires listed companies to provide
specific enumerated disclosures with regard to outstanding options.\6\
The Exchange

proposes to eliminate these requirements. The Exchange notes that
companies are required to include disclosure in their Form 10-K in
relation to options available under equity compensation plans pursuant
to Item 201(d) of Regulation S-K and options issued as executive
compensation pursuant to Item 402 of Regulation S-K. Consequently, the
Exchange believes it is appropriate to defer to the SEC in determining
what disclosures should be required with respect to options and to
delete its own disclosure requirements from Section 610(a).
---------------------------------------------------------------------------

    \6\ Section 610(a) provides that the company must disclose in
its annual report to security holders, for the year covered by the
report: (a) The number of unoptioned shares available at the
beginning and at the close of the year for the granting of options
under an option plan; and (b) any changes in the exercise price of
outstanding options, through cancellation and reissuance or
otherwise, except price changes resulting from the normal operation
of anti-dilution provisions of the options.
---------------------------------------------------------------------------

    Section 610(a) currently specifies that a company that fails to
file its annual report on Forms 10-K, 20-F, 40-F or N-CSR with the SEC
in a timely manner is subject to delisting pursuant to Section 1002(d).
The Exchange proposes to amend this provision to provide that companies
delayed in making these filings will be subject to proposed Section
1007 as discussed below.
    Prior to an amendment to Section 610 in 2009,\7\ Section 610
required a listed company to physically deliver its annual report filed
with the SEC to shareholders each year. In its amended form, Section
610 no longer requires companies to physically deliver their annual
reports but relies instead on the fact that listed company annual
reports are available on the SEC Web site and are required to be made
available on or through the Web site of the applicable listed company.
Proposed Section 1007 as described below establishes compliance
procedures for companies that are delayed in filing their annual
reports with the SEC. In light of the foregoing, the Exchange proposes
to delete Sections 611 (Time of Publication), 612 (Request for
Extension) and 613 (Good Cause for Delay) of the Company Guide in their
entirety. Section 611 specifies timeframes within which a company's
hard copy annual report must be submitted to the Exchange and
distributed to shareholders. The Exchange proposes to delete this
provision as Section 610 no longer requires the delivery of hard copy
annual reports and proposed Section 1007 will include detailed
compliance requirements with respect to delayed annual report filings.
Similarly, Section 612 sets forth a process for companies to request an
extension of time from the Exchange to distribute hard copy annual
reports to their shareholders. The Exchange proposes to delete this
requirement, as companies are not required to deliver hard copy annual
reports under the current rules and proposed Section 1007 will
establish a process for granting companies additional time when they
are delayed in submitting their annual reports to the SEC. Section 613
specifies circumstances under which good cause may exist for a company
being delayed in publishing its annual report. The Exchange proposes to
delete this provision, as in the future all determinations as to the
continued listing of companies that are delayed in their annual report
filings will be made pursuant to the provisions of proposed Section
1007.
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release No. 59685 (April 1,
2009); 74 FR 16031 (April 8, 2009) (SR-NYSEMKT-2009-04).
---------------------------------------------------------------------------

    Section 610(b) makes reference to providing notice of material news
to the Exchange's StockWatch and Listing Qualifications Departments.
The Exchange proposes to delete these references as those departments
now have different names. In their place, the Exchange proposes to
include a statement that companies should comply with the Exchange's
material news policies set forth in Sections 401 and 402 of the Company
Guide by providing notice to the Exchange's Market Watch Group pursuant
to the material news notification requirements of Sections 401 and 402.
    Section 610(b) currently provides that a listed company that
receives an audit opinion that contains a going concern
``qualification'' must make a public announcement through the news
media disclosing the receipt of such qualified opinion. The Exchange
proposes to replace the reference to a going concern ``qualification''
with a reference to a going concern ``emphasis'' as this is a more
correct characterization under the accounting literature. In addition,
the Exchange proposes to provide that the public announcement of the
existence of a going concern emphasis in an audit opinion must be made
contemporaneously with the filing of the SEC report including the going
concern emphasis, rather than within seven calendar days of such filing
as is currently the case. The Exchange believes a going concern
emphasis is material to investors and should be immediately disclosed.
Proposed Section 1007 SEC Annual and Quarterly Report Timely Filing
Criteria
    Under proposed Section 1007, a company will incur a late filing
delinquency and be subject to the procedures set forth in Section 1007
on the date on which any of the following occurs:
     The company fails to file its annual report (Forms 10-K,
20-F, 40-F or N-CSR) or its quarterly report on Form 10-Q or semi-
annual report on Form N-CSR (``Semi-Annual Form N-CSR'') with the SEC
by the date such report was required to be filed by the applicable
form, or if a Form 12b-25 was timely filed with the SEC, the extended
filing due date for the annual report, Form 10-Q, or Semi-Annual Form
N-CSR (for purposes of this Section 1007, the later of these two dates,
along with any Semi-Annual Report Filing Due Date as defined below,
will be referred to as the ``Filing Due Date'' and the failure to file
a report by the applicable Filing Due Date, a ``Late Filing
Delinquency'');
     a listed foreign private issuer fails to file the Form 6-K
containing semi-annual financial information required by proposed
Section 110(e) (the ``Semi-Annual Report'') by the date specified in
that rule (the ``Semi-Annual Report Filing Due Date'');
     the company files its annual report without a financial
statement audit report from its independent auditor for any or all of
the periods included in such annual report (a ``Required Audit Report''
and the absence of a Required Audit Report, a ``Required Audit Report
Delinquency'');
     the company's independent auditor withdraws a Required
Audit Report or the company files a Form 8-K with the SEC pursuant to
Item 4.02(b) thereof disclosing that it has been notified by its
independent auditor that a Required Audit Report or completed interim
review should no longer be relied upon (a ``Required Audit Report
Withdrawal Delinquency''); or
     the company files a Form 8-K with the SEC pursuant to Item
4.02(a) thereof to disclose that previously issued financial statements
should no longer be relied upon because of an error in such financial
statements or, in the case of a foreign private issuer, makes a similar
disclosure in a Form 6-K filed with the SEC or by other means (a ``Non-
Reliance Disclosure'') and, in either case, the company does not refile
all required corrected financial statements within 60 days of the
issuance of the Non-Reliance Disclosure (an ``Extended Non-Reliance
Disclosure Event'' and, together with a Late Filing Delinquency, a
Required Audit Report Delinquency and a Required Audit Report
Withdrawal Delinquency, a ``Filing Delinquency'') (for purposes of the
cure periods described below, an Extended Non-Reliance Disclosure Event
will be

deemed to have occurred on the date of original issuance of the Non-
Reliance Disclosure); if the Exchange believes that a company is
unlikely to refile all required corrected financial statements within
60 days after a Non-Reliance Disclosure or that the errors giving rise
to such Non-Reliance Disclosure are particularly severe in nature, the
Exchange may, in its sole discretion, determine earlier than 60 days
that the applicable company has incurred a Filing Delinquency as a
result of such Non-Reliance Disclosure.
    The Exchange will also deem a company to have incurred a Filing
Delinquency if the company submits an annual report, Form 10-Q, or
Semi-Annual Form N-CSR to the SEC by the applicable Filing Due Date,
but such filing fails to include an element required by the applicable
SEC form and the Exchange determines in the Exchange's sole discretion
that such deficiency is material in nature.\8\
---------------------------------------------------------------------------

    \8\ The following is a non-exclusive list of scenarios involving
material filing elements that would cause the Exchange to deem the
company to have incurred a Late Filing Delinquency: The filing does
not include required financial statements or a required audit
opinion; a required financial statement audit opinion includes
qualifying or disclaiming language or the auditor provides an
adverse financial statement audit opinion; a required financial
statement audit opinion is unsigned or undated; there is a
discrepancy between the period end date for required financial
statements and the date cited in the related audit report; the
company's auditor has not conducted a SAS 100 review with respect to
the company's Form 10-Q; required chief executive officer or chief
financial officer certifications are missing; a Sarbanes-Oxley Act
Section 404 required internal control report or auditor
certification is missing; the filing does not comply with the
applicable SEC XBRL requirements; or the filing does not include
signatures of officers or directors required by the applicable form.
---------------------------------------------------------------------------

    The annual report, Form 10-Q, Semi-Annual Form N-CSR or Semi-Annual
Report that gives rise to a Filing Delinquency shall be referred to
herein and in proposed Section 1007 as the ``Delinquent Report.''
    Subsequent Late Reports. A company that has an uncured Filing
Delinquency will not incur an additional Filing Delinquency if it fails
to file a subsequent annual report, Form 10-Q, Semi-Annual Form N-CSR
or Semi-Annual Report (a ``Subsequent Report'') by the applicable
Filing Due Date for such Subsequent Report. However, in order for the
company to cure its initial Filing Delinquency, no Subsequent Report
may be delinquent or deficient on the date by which the initial Filing
Delinquency is required to be cured.
    Notification and Cure Periods. Upon the occurrence of a Filing
Delinquency, the Exchange will promptly (typically within five business
days) send written notification (the ``Filing Delinquency
Notification'') to a company of the procedures set forth below. Within
five days of the date of the Filing Delinquency Notification, the
company will be required to (a) contact the Exchange to discuss the
status of the Delinquent Report and (b) issue a press release
disclosing the occurrence of the Filing Delinquency, the reason for the
Filing Delinquency and, if known, the anticipated date such Filing
Delinquency will be cured via the filing or refiling of the applicable
report, as the case may be. If the company has not issued the required
press release within five days of the date of the Filing Delinquency
Notification, the Exchange will issue a press release stating that the
company has incurred a Filing Delinquency and providing a description
thereof.
    During the six-month period from the date of the Filing Delinquency
(the ``Initial Cure Period''), the Exchange will monitor the company
and the status of the Delinquent Report and any Subsequent Reports,
including through contact with the company, until the Filing
Delinquency is cured.\9\ If the company fails to cure the Filing
Delinquency within the Initial Cure Period, the Exchange may, in its
sole discretion, allow the company's securities to be traded for up to
an additional six-month period (the ``Additional Cure Period'')
depending on the company's specific circumstances. If the Exchange
determines that an Additional Cure Period is not appropriate,
suspension and delisting procedures will commence in accordance with
the procedures set out in Section 1010 of the Company Guide. A company
is not eligible to follow the procedures outlined in Section 1009 with
respect to these criteria. Notwithstanding the foregoing, however, the
Exchange may in its sole discretion decide (i) not to afford a company
any Initial Cure Period or Additional Cure Period, as the case may be,
at all or (ii) at any time during the Initial Cure Period or Additional
Cure Period, to truncate the Initial Cure Period or Additional Cure
Period, as the case may be, and immediately commence suspension and
delisting procedures if the company is subject to delisting pursuant to
any other provision of the company Guide, including if the Exchange
believes, in the Exchange's sole discretion, that continued listing and
trading of a company's securities on the Exchange is inadvisable or
unwarranted in accordance with Sections 1001-1006 of the Company Guide.
---------------------------------------------------------------------------

    \9\ Under the proposed rule, a company that has an uncured
Filing Delinquency would not incur an additional Filing Delinquency
if it fails to file a Subsequent Report by the applicable Filing Due
Date. However, in order for the company to cure its initial Filing
Delinquency, no Subsequent Report may be delinquent or deficient on
the date by which the initial Filing Delinquency is required to be
cured.
---------------------------------------------------------------------------

    The Exchange may also commence suspension and delisting procedures
without affording any cure period at all or at any time during the
Initial Cure Period or Additional Cure Period if the Exchange believes,
in the Exchange's sole discretion, that it is advisable to do so on the
basis of an analysis of all relevant factors, including but not limited
to:
     Whether there are allegations of financial fraud or other
illegality in relation to the company's financial reporting;
     the resignation or termination by the company of the
company's independent auditor due to a disagreement;
     any extended delay in appointing a new independent auditor
after a prior auditor's resignation or termination;
     the resignation of members of the company's audit
committee or other directors;
     the resignation or termination of the company's chief
executive officer, chief financial officer or other key senior
executives;
     any evidence that it may be impossible for the company to
cure its Filing Delinquency within the cure periods otherwise available
under this rule; and any past history of late filings.
    In determining whether an Additional Cure Period after the
expiration of the Initial Cure Period is appropriate, the Exchange will
consider the likelihood that the Delinquent Report and all Subsequent
Reports can be filed or refiled, as applicable, during the Additional
Cure Period, as well as the company's general financial status, based
on information provided by a variety of sources, including the company,
its audit committee, its outside auditors, the staff of the SEC and any
other regulatory body. The Exchange strongly encourages companies to
provide ongoing disclosure on the status of the Delinquent Report and
any Subsequent Reports to the market through press releases, and will
also take the frequency and detail of such information into account in
determining whether an Additional Cure Period is appropriate. If the
Exchange determines that an Additional Cure Period is appropriate and
the company fails to file the Delinquent Report and all Subsequent
Reports by the end of such

Additional Cure Period, suspension and delisting procedures will
commence immediately in accordance with the procedures set out in
Section 1010. In no event will the Exchange continue to trade a
company's securities if that company (i) has failed to cure its Filing
Delinquency or (ii) is not current with all Subsequent Reports, on the
date that is twelve months after the company's initial Filing
Delinquency.
    The Exchange proposes that the proposed amendments will become
operative immediately upon approval by the SEC. Any company that is
delayed in making a filing that would be subject to proposed Section
1007 will continue to be subject to the compliance plan provisions of
Section l009 in relation to that delayed filing but will be subject to
proposed Section 1007 in relation to any subsequent delayed filings.
    The Exchange proposes to include a cross-reference to proposed
Section 1007 in Section 1101 of the Company Guide, which discusses SEC
filing obligations of listed companies. The Exchange also proposes to
remove a reference to a company's Listing Qualifications analyst in
Section 1101 and replace it with a reference to Exchange staff, as the
Exchange no longer has a department under the Listings Qualification
title.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) \10\ of the Act, in general, and furthers the
objectives of Section 6(b)(5) of the Act,\11\ in particular in that it
is designed to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest
and is not designed to permit unfair discrimination between customers,
issuers, brokers, or dealers. The Exchange believes that the proposed
amendment is consistent with the investor protection objectives of
Section 6(b)(5) because: (i) It strengthens the Exchange's continued
listing requirements with respect to delinquent SEC filings by deeming
companies delinquent if they fail to file their annual report or Form
10-Q on a timely basis and by subjecting companies to the late filer
process if there are material inadequacies in their required annual or
quarterly filings; and (ii) the more stringent requirements will
encourage listed companies to submit timely and compliant periodic
reports to the SEC.\12\
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
    \12\ The amended procedures in relation to delayed periodic
reports are more stringent than those currently in effect primarily
because proposed Section 1007 would allow a company to remain listed
for a maximum of 12 months from the filing due date of a delayed
periodic report, while current rules give the Exchange the
discretion to continue the listing for a period of up to 18 months.
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes that the proposed amendments to the Company
Guide do not impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The proposed
rule change does not affect competition in any way, but rather simply
seeks to protect investors by insuring that companies cannot remain
listed for any extended period of time without appropriately filing
their required periodic financial reports with the SEC.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEMKT-2017-23 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEMKT-2017-23. This
file number should be included on the subject line if email is used. To
help the Commission 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/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEMKT-2017-23, and should
be submitted on or before June 2, 2017.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
---------------------------------------------------------------------------

    \13\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-09607 Filed 5-11-17; 8:45 am]
 BILLING CODE 8011-01-P