• New Disclosure Requirements for Natural Resource Companies Under Dodd-Frank Act
  • September 22, 2010 | Authors: Ronald R. Janke; Michael G. Marting; Katherine M. Serevitch; Michael J. Solecki
  • Law Firm: Jones Day - Cleveland Office
  • On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"). Although the Act is purported to address the need for certain financial reforms as a result of the recent turmoil in the financial sector, it also contains several provisions that are not related to these financial reforms. Among the other provisions is a requirement that publicly traded companies engaged in coal or other mining disclose specific safety information in their Securities and Exchange Commission ("SEC") filings. Because the requirement contains no materiality threshold, the new disclosure requirements will significantly expand the disclosure obligations for these companies. The Act also contains provisions requiring the SEC to issue final rules that require (a) publicly traded companies engaged in the commercial development of oil, natural gas, or minerals to include in their annual report and on their web site information about payments they or their subsidiaries or affiliates have made to a foreign government or the U.S. federal government for such development, and (b) publicly traded companies that use minerals originating in the Democratic Republic of Congo in manufacturing to disclose measures taken to exercise due diligence on the source and chain of custody of the minerals and the products manufactured.

    Required Disclosures for Mining Companies

    The Act requires companies that are required to file reports pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 and that are an operator, or that have a subsidiary that is an operator, of a coal or other mine to include in their quarterly reports on Form 10-Q and annual reports on Form 10-K certain information regarding violations, orders, citations, and assessments that such companies have received under the health and safety statutes of the Federal Mine Safety and Health Act of 1977 (the "FMSHA"). As used in the Act, "coal or other mine" and "operator" have the meanings given those terms in Section 3 of the FMSHA. These disclosure requirements are effective 30 days after the date of enactment of the Act. On a related front, Congress is considering major changes to the FMSHA that would strengthen its enforcement provisions.

    Additional Disclosures of Payments by Resource Extraction Issuers

    Section 1504 of the Act requires that, not later than 270 days after the date of enactment of the Act, the SEC issue final rules that require each "resource extraction issuer" to include in an annual report of such issuer information relating to any payment made by such issuer, its subsidiaries, or affiliates to a foreign government or the U.S. federal government for the purpose of the commercial development of oil, natural gas, or minerals. The rules issued by the SEC will require that the information included in the annual report be submitted in an interactive data format. The Act also requires, to the extent practicable, that the SEC make available online to the public a compilation of the information required to be submitted under the rules. These new rules will be effective for the first annual report of such issuer for the fiscal year ending not earlier than one year after the date on which the SEC issues the final rules.