# Flame-Resistant Conveyor Belt, Fire Prevention and Detection, and Use of Air From the Belt Entry

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-30639

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 31, 2008
- **Citation:** 73 FR 80580

## Text

DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 6, 14, 18, 48, and 75
RIN 1219-AB59
Flame-Resistant Conveyor Belt, Fire Prevention and Detection, and Use of Air From the Belt Entry

AGENCY:

Mine Safety and Health Administration (MSHA), Labor.

ACTION:

Final rule.

SUMMARY:

This final rule addresses the recommendations of the Technical Study Panel (Panel) on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining. The Panel was established under Section 11 of the Mine Improvement and New Emergency Response (MINER) Act of 2006. The final rule is consistent with the Panel's recommendations and includes requirements for: Flame-resistant conveyor belts; training Atmospheric Monitoring System operators; levels of respirable dust in belt entries; airlocks along escapeways; minimum and maximum air velocities; approval for the use of air from the belt entry to ventilate working sections; monitoring point-feed regulators; smoke sensors; standardized tactile signals on lifelines; replacing point-type heat sensors with carbon monoxide sensors; and belt conveyor and belt entry maintenance.

DATES:

Effective Date:
The final rule is effective on December 31, 2008.

Compliance Dates:
Details are in the
SUPPLEMENTARY INFORMATION
section of this document.

FOR FURTHER INFORMATION CONTACT:

Patricia W. Silvey at
silvey.patricia@dol.gov
(e-mail), (202) 693-9440 (Voice), or (202) 693-9441 (Fax).

SUPPLEMENTARY INFORMATION:

Compliance Dates

Each mine operator shall comply with the following sections by the dates listed below.

1. § 48.27(a) and §§ 75.156(a), 75.350(b), and 75.1731 by March 2, 2009.

2. § 75.333(c)(4) by March 31, 2009.

3. §§ 75.380(d)(7), 75.380(f), 75.381(e)(5), and 75.381(f) by June 30, 2009.

4. §§ 75.350(a)(2), 75.351(e)(2), 75.1103-4(a), 75.1108(a), and 75.1108(b) December 31, 2009.

5. § 75.1108(c) by December 31, 2018.

The outline of the final rule is as follows:

I. Introduction

II. Statutory and Rulemaking Background

III. Section-by-Section Analysis

A. Flame-Resistant Conveyor Belt

1. General

2. Discussion of Final Rule

3. Conforming Amendments

B. Fire Prevention and Detection and Approval of the Use of Air From the Belt Entry To Ventilate Working Sections

1. General

2. Discussion of Final Rule

IV. Regulatory Economic Analysis

A. Executive Order 12866

B. Population-at-Risk

C. Benefits

D. Compliance Costs

V. Feasibility

A. Technological Feasibility

B. Economic Feasibility

VI. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA)

A. Definition of a Small Mine

B. Factual Basis for Certification

VII. Paperwork Reduction Act of 1995

A. Summary

B. Procedural Details

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

B. Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families

C. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights

D. Executive Order 12988: Civil Justice Reform

E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

F. Executive Order 13132: Federalism

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking

IX. Final Rule

I. Introduction

This final rule addresses the recommendations of the Technical Study Panel (Panel), which was established under Section 11 of the MINER Act. The Secretary of Labor chartered the Panel on December 22, 2006 (71 FR 77069).

On December 20, 2007, the Panel issued its final report, which included the following 20 recommendations passed by unanimous vote:

• Recommendation 1—Conveyor belt flammability testing and approval;

• Recommendation 2—Other belt tests;

• Recommendation 3—Improved fire resistance standards for all underground coal mines;

• Recommendation 4—Coordinating belt testing with other countries;

• Recommendation 5—Belt entry and conveyor belt maintenance;

• Recommendation 6—Special requirements for the use of belt air;

• Recommendation 7—Belt air approval recommendation;

• Recommendation 8—Discontinuing point-type heat sensors;

• Recommendation 9—Smoke sensors;

• Recommendation 10—Use of diesel-discriminating sensors;

• Recommendation 11—Review of AMS records;

• Recommendation 12—AMS operator training certification;

• Recommendation 13—Minimum and maximum air velocities;

• Recommendation 14—Escapeways and leakage;

• Recommendation 15—Lifelines;

• Recommendation 16—Point-feeding;

• Recommendation 17—Respirable dust;

• Recommendation 18—Mine methane;

• Recommendation 19—Inspections; and

• Recommendation 20—Research.

A copy of the Panel's report is available on MSHA's Web site at:
http://www.msha.gov/beltair/BeltAirFinalReport122007.pdf
.

The final rule is based on the Panel's recommendations, Agency data and experience, and comments and testimony received during the rulemaking process. MSHA is providing delayed compliance dates for some requirements in the final rule for mine operators to have adequate time to comply.

II. Statutory and Rulemaking Background

The Consolidated Appropriations Act of 2008 (Pub. L. 110-161, December 26, 2007) requires the Secretary to publish regulations, consistent with the recommendations of the Panel, to require that:

[i]n any coal mine * * * belt haulage entries not be used to ventilate active working places without prior approval from the Assistant Secretary. Further, a mine ventilation plan incorporating the use of air coursed through belt haulage entries to ventilate active working places shall not be approved until the Assistant Secretary has reviewed the elements of the plan related to the use of belt air and has determined that the plan at all times affords at least the same measure of protection where belt haulage entries are not used to ventilate working places.

The regulations must be finalized by December 31, 2008.

Based on the Panel's recommendations, MSHA published a proposed rule on Safety Standards Regarding the Recommendations of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining in the
Federal Register
on June 19, 2008 (73 FR 35026). On that same date, MSHA published a Request for Information (RFI) in the
Federal Register
on criteria for testing the toxicity and density of smoke produced from burning conveyor belt or similar materials (73 FR 35057).

The Agency will review relevant information received on the RFI and make a determination on appropriate regulatory action.

The Agency held four public hearings on: August 19, 2008 in Salt Lake City, UT; August 21, 2008 in Lexington, KY; August 26, 2008 in Charleston, WV; and August 28, 2008 in Birmingham, AL. The comment period closed on September 8, 2008.

Like the proposal, the final rule includes new and revised safety standards for underground coal mines for those Panel recommendations that required rulemaking. The following five recommendations did not require rulemaking: Recommendation 2, concerning “Other Belt Tests,” recommends that MSHA adopt a drum friction test to be utilized for a period of two years to evaluate and assess the contribution to conveyor belt fire safety of such a test. MSHA is continuing to evaluate the drum friction test to determine if it could complement the Belt Evaluation Laboratory Test method. This evaluation will occur over a two-year period, and is consistent with the Panel's recommendation. Recommendation 4, concerning “Coordinating belt testing with other countries,” recommends that MSHA establish contacts and maintain dialogue with other key mining countries. MSHA's technical support program area maintains continuing contact and dialogue with other key mining countries. Recommendation 11, concerning “Review of AMS records,” recommends that MSHA perform regular, periodic reviews of atmospheric monitoring system (AMS) records at mines using air from the belt entry to ventilate working sections. In addition, MSHA already conducts periodic reviews of AMS records during regular inspections of the mine. Recommendation 19, concerning “Inspections of mines utilizing belt air in the working section,” recommends that a more structured procedure be instituted to help mine inspectors complete their inspection duties with greater ease and efficiency. MSHA will accomplish this through inspector training. Recommendation 20, concerning “Research,” recommends research utilizing ventilation modeling, engineering design and risk analysis be performed to investigate: Improved escapeway design, reduced air leakage, and booster fans. MSHA will accomplish this through the Agency's technical support program area, working in collaboration with the National Institute for Occupational Safety and Health (NIOSH).

This preamble, like that of the proposal, is organized in two parts. Part III(A) includes requirements for improved flame-resistant conveyor belts. Part III(B) includes requirements for fire prevention and detection and approval of the use of air from the belt entry to ventilate working sections.

III. Section-by-Section Analysis

A. Flame-Resistant Conveyor Belt

1. General

In the 1980s, MSHA and the former Bureau of Mines (Bureau) of the Department of the Interior developed a flame-resistance test for conveyor belts that would result in a higher level of flame resistance than the existing 30 CFR Part 18 test. The Bureau and MSHA constructed a large-scale test facility at the Lake Lynn Laboratory. The large scale tests showed the effect of air flow on belt flammability. These tests were conducted over a wide range of air velocities.

MSHA used the large-scale flammability test data to develop the Belt Evaluation Laboratory Test (BELT), a laboratory-scale flame resistance test. In order for a belt to pass the BELT method, it must have improved fire-resistant capability, which greatly limits flame propagation. The BELT method is easy to perform, objective, correlates well with large-scale tests, and is economically and technologically feasible. MSHA and the Bureau performed extensive testing of the BELT method. Test results over a 34-month period, based on samples of conveyor belts, reveal that the BELT method is highly precise and accurate.

On December 24, 1992, MSHA published a proposal to revise the existing regulation for testing and acceptance of conveyor belts (53 FR 61524). That proposal would have replaced existing § 18.65 concerning flame-testing of conveyor belts. Under the 1992 proposal, underground conveyor belts would have been required to meet the more protective BELT method for MSHA approval under proposed Part 14.

However, the Agency withdrew the proposal (67 FR 46431) on July 15, 2002, due to the decreased frequency of conveyor belt fires. As mentioned earlier, in accordance with Section 11 of the 2006 MINER Act and the recommendation of the Panel, MSHA issued a proposal on June 19, 2008 on Safety Standards Regarding the Recommendations of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining.

The final rule addresses Panel Recommendation No. 1—Conveyor Belt Flammability Testing and Approval, and Recommendation No. 3—Improved Fire Resistance Standards for All Underground Coal Mines. Consistent with the Panel's recommendations, this final rule establishes a new Part 14 that includes the BELT method for the approval of improved flame-resistant conveyer belts. In addition, the final rule requires that improved flame-resistant conveyor belts be used in all underground coal mines. It makes technical and conforming changes to existing Parts 6 and 18.

2. Discussion of the Final Rule

Final § 14.1, changed from the proposal, establishes the purpose of the final rule and effective date for approval holders. Final Part 14 establishes the flame resistance requirements for MSHA approval of conveyor belts for use in underground coal mines. Applications for approval or extensions of approval submitted after December 31, 2008 must meet the requirements of final Part 14.

During the rulemaking process and at each of the public hearings, MSHA solicited comments on the impact of the proposed one-year period provided manufacturers and operators to transition to the new belt, on existing inventories, and associated costs to approval holders. A commenter stated that the transition period was adequate and that they would not have any difficulty meeting it as long as the approval process was quick. Another commenter stated that the timetable established by the Agency may be too aggressive to assure that all the laboratory testing and approvals are timely completed so that belt manufacturing and delivery of the new belt products are timely. Based on Agency experience, MSHA's timely processing of applications will be dependent upon the completeness of applications submitted to the Agency. To assure that the new belt will be

available in a timely manner, the final rule requires that all applications for approval or extensions of approval submitted after December 31, 2008 meet the requirements of the final rule. MSHA intends to process all applications that fully comply with the requirements in the final rule on a timely basis.

Final § 14.2 establishes the following definitions: “Applicant”, like the proposal, is derived from existing §§ 6.2 and 7.2, and refers to an individual or organization that manufactures or controls the production of a conveyor belt and who applies to MSHA for approval. MSHA received no comments on the proposal.

“Approval”, like the proposal, is derived from existing § 7.2, and replaces the term “acceptance” under existing § 18.2. An approval, issued by MSHA, shows that a conveyor belt has met the requirements of this Part, and authorizes a marking identifying the belt as approved. This is consistent with other MSHA approval regulations which define “approved” as the general term which indicates that a product has met MSHA's technical requirements. MSHA received no comments on the proposal.

“Extension of approval”, like the proposal, is derived from existing § 7.2, and is defined as a document issued by MSHA which states that a change to a conveyor belt previously approved by MSHA continues to meet the requirements of this Part. An extension of approval authorizes the continued use of the approval marking after the appropriate extension number has been added. MSHA received no comments on the proposal.

“Flame-retardant ingredient”, like the proposal, means material that inhibits ignition or flame propagation. MSHA received no comments on the proposal.

“Flammable ingredient”, like the proposal, means material that is capable of combustion. MSHA received no comments on the proposal.

“Inert ingredient”, like the proposal, means a material that does not contribute to combustion. MSHA received no comments on the proposal.

“Post-approval product audit”, like the proposal, is derived from existing § 7.2, and is defined as an examination, testing, or both, by MSHA of an approved conveyor belt selected by MSHA to determine if it meets the technical requirements and has been manufactured as approved. MSHA received no comments on the proposal.

“Similar conveyor belt”, like the proposal, is defined as a conveyor belt that shares the same cover compound, general carcass construction, and fabric type as another approved conveyor belt. MSHA received no comments on the proposal.

Final § 14.3, derived from existing § 18.9(a), provides that representatives of the applicant and other persons agreed upon by MSHA and the applicant may be present during tests and evaluations conducted under this Part. In response to comments, the final rule is changed from the proposal to allow the Agency to consider requests received from others to observe tests.

Commenters requested that miners (or representatives of the miners) be allowed to observe and evaluate the testing of belts. In response to this comment, the final rule would allow the Agency to consider requests received from others to observe tests. It is important to note that such requests would only apply to tests, not evaluations. MSHA's evaluations involve a paper review of the application and thus would not be appropriate for observation. MSHA believes that observation of tests may be appropriate if it does not involve the release of proprietary information, so long as it does not interfere with the approval process, does not delay the approval, and does not create a conflict of interest. As stated during the rulemaking process, the Agency must protect any proprietary information submitted.

With this revision, MSHA intends that the approval process for flame-resistant conveyor belt be as transparent as possible, while safeguarding the confidentiality of all proprietary information submitted by applicants. The Agency made a minor non-substantive change, which clarifies that it is not necessary to state that MSHA be included in the parties allowed to observe testing and evaluation.

Final § 14.4, like the proposal, is derived from existing §§ 7.3 and 18.6, and provides application procedures and requirements. The final rule covers two types of approval actions: Applications for approval and extensions of approval. When requesting the approval of a flame-resistant conveyor belt, final § 14.4 requires that the applicant submit information necessary to properly evaluate a conveyor belt. If, after receipt of an approval, the applicant requests approval of a similar conveyor belt or an extension of approval for the original conveyor belt, the applicant will not be required to submit documentation duplicative of previously submitted information. Only information related to changes in the previously approved conveyor belt will be required, avoiding unnecessary paperwork.

Final § 14.4(a), like the proposal, is based on existing §§ 7.3(a) and 18.6(a). It specifies how and where an applicant files for MSHA approval or extension of approval. Paragraph (a) requires that applications for approvals or extensions of approval be sent to: U.S. Department of Labor, Mine Safety and Health Administration, Chief, Approval and Certification Center, 765 Technology Drive, Triadelphia, West Virginia 26059. Alternatively, applications for approval or extensions of approval may be filed online at
http://www.msha.gov
or faxed to: Chief, Mine Safety and Health Administration Approval and Certification Center at 304-547-2044. Since the proposal, the address of the Center has been changed (73 FR 52210); the final rule reflects this change. MSHA received no comments on the proposal.

Final paragraph (b), like the proposal, requires that each application for approval contain information concerning the identification and construction of a conveyor belt, except any information submitted in a prior approval application need not be re-submitted. An application must address either a single specific construction, or multiple-ply construction consisting of the same cover compound and carcass construction varying only by the number of plies and fabric weight. Under the final rule, if approval of multiple-ply construction is requested, the minimum and maximum number of plies both with thinnest-specified cover thickness and heaviest-specified fabric weight will be tested.

Final § 14.4(b)(1), like the proposal, requires a technical description of the conveyor belt. This information must include: Trade name (specification or code numbers) or identification number; cover compound type and designation number; belt thickness and thickness of top and bottom covers; presence and type of skim coat; presence and type of friction coat; carcass construction (number of plies, solid woven); carcass fabric by textile type and weight (ounces per square yard); presence and type of breaker or floated ply; and the number, type, and size of cords and fabric for metal cord belts. MSHA received no comments on the proposal.

Proposed § 14.4(b)(3) has been renumbered as § 14.4(b)(2). Like the proposal, it requires the name, address, and telephone number of the applicant's representative responsible for answering any questions regarding the application. The applicant may also wish to include the representative's electronic mail (e-mail) address. MSHA received no comments on the proposal.

Proposed § 14.4(b)(2) has been renumbered as final § 14.4(c)(1). The final rule permits an applicant to request an approval of a similar belt or extension of approval without testing if the formulation of the belt is provided and MSHA determines testing is not necessary. The application must include formulation information on the compounds in the conveyor belt (for example, styrene-butadiene rubber (SBR), polyvinyl chloride (PVC), chloroprene, composite, or steel cable) by specifying either: (1) Each ingredient by its chemical name along with its percentage (weight) and tolerance or percentage range; or (2) each flame-retardant ingredient by its chemical or generic name with its percentage and tolerance or percentage range, or its minimum percent. The applicant must list each flammable and inert ingredient by chemical, generic or trade name, along with the total percentage of all flammable and inert ingredients. MSHA will evaluate this information and determine whether testing using the BELT method should occur or if the similar belt or extension of approval can be approved without testing.

A commenter stated that the actual formulation data required to be submitted to MSHA is more extensive than the existing standard requires and includes competitively sensitive information. The commenter also stated that even though MSHA intends to protect the confidentiality of the information, there can be no guarantees. This commenter stated that MSHA should be prohibited from requiring compounding or formulation information to be submitted as part of the application for approval.

Approving belts based upon an evaluation of the formulation and construction of the belt speeds the approval process and reduces cost to the applicant by eliminating testing fees. To approve a belt without testing, detailed formulation information on the composition and construction of the previously approved belt or belt family is necessary to assure that the flame-resistant properties would be maintained. This information may not be necessary if each belt construction is tested using the BELT method. To address this commenter's concern, the final rule allows the option of submitting detailed formulation and construction data for belts, or submitting samples for testing. Applicants who choose to submit samples for testing would be responsible for testing fees.

When the formulation and construction information is collected, MSHA is required to maintain the proprietary nature of this conveyor belt information submitted under final § 14.4 under the Freedom of Information Act (FOIA, 5 U.S.C. 552). MSHA intends to continue its existing practice of treating information on product specifications and performance as proprietary information. The Agency will protect disclosure of this information to the fullest extent, consistent with the FOIA. Section 14.9 of the final rule provides that MSHA notify the applicant of requests for product information. MSHA will provide the manufacturer the opportunity to present its position on disclosure. In addition, information identified by the manufacturer as proprietary will not be disclosed.

Proposed § 14.4(b)(4) has been renumbered as final § 14.4(c)(2). It requires the identification of any similar conveyor belt for which the applicant already holds an approval. The final rule has been revised to require submission of the formulation specifications for the approved similar belt if it has not already been submitted to the Agency. This would be the same information as specified in § 14.4(c)(1).

Final § 14.4(c)(2)(i) requires the applicant to submit, as part of the application, the MSHA assigned approval number of the belt that most closely resembles the one being evaluated. Final § 14.4(c)(2)(ii) requires an explanation of any changes from the existing approval. MSHA's evaluation of whether a belt is similar will determine if the application has to be processed as an extension of approval or a new approval.

A commenter stated that this proposal is confusing. This commenter further stated that MSHA should take the safe approach and test all belt products, regardless of the number of plies. Under existing Part 18, MSHA's testing program for accepting belts over the last 30 years includes the evaluation of similar belts. Under the existing program, each belt that is submitted to MSHA is thoroughly evaluated according to existing application procedures to determine if additional testing is necessary or if an extension is justified. The use of the BELT method will greatly increase safety to miners by the approval of improved flame-resistant belt. Further, additional information required under the final rule will allow MSHA to provide a full evaluation of the belt application.

Final § 14.4(d), renumbered from proposed § 14.4(c), requires that any change from the documentation on file at MSHA that affects the technical requirements of Part 14 must be submitted for approval prior to implementing the change. This requirement avoids changes being made that could affect the flame resistant properties of the conveyor belt. MSHA received no comments on the proposal.

Final § 14.4(d)(1), (2), and (3), like the proposal, include requirements for each application for an extension of approval. Final paragraph (d)(1) requires the MSHA-assigned approval number of the conveyor belt for which the extension is sought; final paragraph (d)(2) requires the description of the proposed change to the conveyor belt; and final paragraph (d)(3) requires the name, address, and telephone number of the applicant's representative responsible for answering any questions regarding the application. The applicant may also include the representative's e-mail address. MSHA received no comments on the proposal.

Final § 14.4(e), renumbered from proposed § 14.4(d), provides that MSHA will determine if testing, additional information, samples, or material is needed to evaluate an application. Under the final rule, if an applicant believes that flame testing is not required, a statement explaining the rationale must be included in the application. MSHA received no comments on the proposal.

Final § 14.4(f), renumbered from proposed § 14.4(e), permits an applicant to request an equivalency determination under existing § 6.20 for a non-MSHA product safety standard. MSHA received no comments on the proposal.

Final § 14.4(g), renumbered from proposed § 14.4(f), requires that fees calculated in accordance with Part 5, entitled: Fee for Testing, Evaluation, and Approval of Mining Products, must be submitted. MSHA received no comments on the proposal.

Final § 14.5, like the proposal, requires that upon request by MSHA, each applicant must submit three pre-cut, unrolled, flat samples of conveyor belt for flame testing. Under the final rule, each sample must be 60 ±
1/4
inches (152.4 ± 0.6 cm) long by 9 ±
1/8
inches (22.9 ± 0.3 cm) wide. The laboratory-scale test for flame resistance requires testing of three samples to determine acceptable performance. The final rule requires pre-cut and unrolled flat samples, which can be mounted for testing. Uncut and rolled samples require additional time to be cut and flattened for subsequent mounting in the test chamber. MSHA uses the word “pre-cut” to inform the applicant that the samples would need to be sent to MSHA already cut to the required sample size. Under existing § 18.65(a), acceptance applicants are required to submit samples for testing.

Curling of samples has presented a problem during testing. These

requirements, along with the required preconditioning of samples, serve to minimize curling of samples. The requirement to submit samples for testing is derived from existing § 18.6(i). However, the requirement for the number and dimension of samples is specific to the BELT method. MSHA received no comments on the proposal.

Final § 14.6, like the proposal, addresses issuance of approval. Final § 14.6(a) provides that MSHA will issue an approval or notice of the reasons for denying approval after completing the Agency's testing and evaluation. The notice of approval will be accompanied by relevant documentation and related material, covering the details of design and construction of the conveyor belt upon which the approval is based. MSHA received no comments on the proposal.

Final § 14.6(b), like the proposal, requires that an applicant not advertise or otherwise represent a conveyor belt as approved until MSHA has issued an approval. MSHA received no comments on the proposal.

Final § 14.7, like the proposal, includes requirements for approval marking and distribution records. Final § 14.7(a), like the proposal, requires that an approved conveyor belt must be marketed only under the name listed in the approval. MSHA received no comments on the proposal.

Final § 14.7(b), like the proposal, is based on existing § 18.65(f). It requires approved conveyor belts to be legibly and permanently marked with the assigned MSHA approval number for the service life of the product. The approval marking must be at least
1/2
inch (1.27 cm) high, placed at intervals not to exceed 60 feet (18.3 meters), and repeated at least once every foot (0.3 m or 30.5 centimeters) across the width of the belt. MSHA requires this marking method since a conveyor belt's edges can wear as it passes along the conveyor framework, causing fraying. Fraying of conveyor belts, which may occur during normal use, can cause the approval markings on belts to become illegible or worn. Relocating the markings from the edge of the belt to across its width permits identification of the conveyor belt for a longer time. This method also enables better identification of conveyor belts cut from larger to smaller widths, or where worn edges are trimmed. MSHA received no comments on the proposal.

Final § 14.7(c), like the proposal, provides that where the construction of a conveyor belt does not permit marking as prescribed under the final rule, other permanent marking may be accepted by MSHA. This provision allows alternatives for marking conveyor belts. MSHA received no comments on the proposal.

Final § 14.7(d), like the proposal, requires that the applicant maintain records of the initial sale of each belt having an approval marking. Under the final rule, the record must be retained for at least 5 years following the initial sale. Information on initial sales should include the sale date, the customer name and address, and the belt identification by slab, batch or lot. A five-year retention period conforms to MSHA's audit cycle.

During the rulemaking process and at each of the public hearings, MSHA requested comments on the 5-year retention period for sales records. Commenters suggested that sales records be kept as long as the belt is in use, whether it be at the operation it was originally purchased for or other locations. In addition, a commenter stated that in order to keep the record straight, MSHA should require that all sales records follow the belt from the time of purchase to its end-of-service life. Based on MSHA's experience and data, a five-year retention period is adequate to discover any potential hazardous defects, such as through MSHA's post-approval audit process.

Final § 14.8 includes requirements for quality assurance. MSHA received no comments on the proposal.

Final § 14.8(a), like the proposal, requires approval holders to flame test a sample of each batch, lot, or slab of conveyor belts; or flame test or inspect a sample of each batch or lot of the materials that contribute to the flame-resistance characteristic. This assures that the finished conveyor belt slab will meet the flame-resistance test. MSHA received no comments on the proposal.

Final § 14.8(b), like the proposal, requires that the instruments used for quality assurance under paragraph (a) be calibrated according to the instrument manufacturer's specifications. Under this final rule, instruments must be calibrated using standards set by the National Institute of Standards and Technology, U.S. Department of Commerce, or other nationally or internationally recognized standards. The final rule also requires that the instruments used be accurate to at least one significant figure beyond the desired accuracy. This calibration sequence is consistent with the procedure under existing § 7.7. MSHA received no comments on the proposal.

Final § 14.8(c), like the proposal, requires control of production in accordance with the approval. If a third party is assembling or manufacturing all or part of the approved belt, the final rule requires that the approval holder assure that the product is manufactured as approved. MSHA received no comments on the proposal.

Final § 14.8(d), like the proposal, requires approval holders to immediately notify the MSHA Approval and Certification Center of any information that a conveyor belt has been distributed, which does not meet the specifications of the approval. It also requires that the notification include a description of the nature and extent of the problem, the locations where the conveyor belt has been distributed, and the approval holder's plans for corrective action. Under the final rule, notification could be by telephone, e-mail, facsimile, or other similar means. In addition, corrective action may include recalling the conveyor belt or restricting its use pending resolution of the defect. MSHA received no comments on the proposal.

Final § 14.9 is derived from existing § 18.9. It addresses the disclosure of information. Final § 14.9(a), like the proposal, provides that all proprietary information concerning product specifications and performance submitted to MSHA by the applicant will be protected from disclosure. MSHA received no comments on the proposal.

Final § 14.9(b), like the proposal, provides that MSHA will notify applicants or approval holders of requests for disclosure of information concerning their conveyor belts, and provide them an opportunity to present their position prior to any decision on disclosure. MSHA received no comments on the proposal.

Under the final rule, MSHA will treat information on product material, specifications, and processes as protected under exemption 4 of FOIA. Exemption 4 exempts from disclosure “trade secrets and commercial or financial information” obtained from an outside source and “privileged or confidential.” (5 U.S.C. 552(b)(4)). Under the Department's regulations at 29 CFR 70.26,
Business information,
MSHA will notify the applicant of any FOIA request seeking information submitted by the applicant under the final rule. The applicant then will have a reasonable period of time in which to object to disclosure. An objecting applicant must submit a “detailed written statement” showing “why the information is a trade secret or commercial or financial information that is privileged or confidential” [29 CFR 70.26(e)]. MSHA will consider the applicant's objections in deciding whether to disclose the information. If MSHA determines that the FOIA

requires disclosure over the applicant's objections, MSHA will notify the applicant of the documents to be disclosed prior to the disclosure date (unless MSHA learns that the material already has lawfully been made public) [29 CFR 70.26(f), (g)]. Under 29 CFR 70.26(b), when submitting documents, applicants should identify the documents they wish to protect by marking them (such as stamping each page “Confidential”). MSHA notes that it has no authority under the FOIA to withhold applicant documents requested by a Congressional oversight committee.

Final § 14.10 provides for post-approval product audits. Final § 14.10(a), like the proposal, provides that approved conveyor belts are subject to periodic audits by MSHA to determine conformity with the technical requirements upon which the approval was based. Under the final rule, MSHA will select representative conveyor belts to be audited and, upon request, the approval holder may obtain any final audit report.

One commenter asked if the audit procedures would be applied equally to domestic and foreign manufacturers who are approval holders. As MSHA stated during the public hearings, all approval holders will be held to the same approval and audit procedures, regardless of location.

Other commenters stated that the proposal would only allow the approval holder to receive the final post-approval product audit report upon request to MSHA. They stated that the distribution of similar reports involving respirators are published and distributed by NIOSH to the mining industry, and believed audit reports should be distributed, or at least made available, to the entire industry. Commenters added that they would also like to have these reports provided to the representative of miners and the operator be required to post a copy on the mine bulletin board. MSHA conducts post-approval product audits under other existing regulations, such as § 7.8(a), and consistent with both the proposal and the final rule, provides copies to the approval holders upon their request. The Agency has not experienced any problems or issues with the existing regulations, and the final rule is the same as the proposal. In the event there is a discrepancy between the manufactured product and the technical requirements upon which the approval is based, the approval holder would have to rectify the discrepancy and meet the requirements in this final rule.

Final § 14.10(b), like the proposal, requires that no more than once a year, except for cause, the approval holder, at MSHA's request, make 3 samples of an approved conveyor belt of the size specified in § 14.5 available to MSHA for an audit at no cost to MSHA. The final rule also allows representatives of the applicant and other persons agreed upon by MSHA and the applicant to be present during audit tests and evaluations; however, if MSHA receives a request from others to observe tests, the Agency will consider it.

Commenters stated that the representative of miners should be given an opportunity to be present during any testing or audit conducted by the Agency. The Agency agrees with the comments that requests to observe tests should be considered under the same conditions as explained in final § 14.3, which is designed to protect proprietary rights of approval holders and not delay the audit process.

Final § 14.10(c), like the proposal, provides that conveyor belts will be subject to audit for cause at any time MSHA believes the product is not in compliance with the technical requirements of the approval. Audits allow MSHA to determine whether products are being manufactured as approved. MSHA will select the product and may obtain products from sources other than the manufacturer, such as distributors or wholesalers.

In determining which products to audit, MSHA will consider a variety of factors such as whether the manufacturer has previously produced the product or similar products, whether the product is new or part of a new product line, or whether the product is intended for a unique application or limited distribution. MSHA may also consider product complexity, the manufacturer's previous product audit results, extent of the product's use in the mining community, and the time elapsed since the last audit or since the product was first approved.

There are other circumstances or causes when additional audits may be necessary to verify compliance with this final rule. These include complaints about the safety or performance of a product, product changes that have not been approved, audit test results that warrant further testing to determine compliance, and evaluation of corrective action taken by an approval holder. Some commenters supported these audit procedures but insisted that a prompt notice of the findings of such audits be made available to all interested parties, including the miners' representatives. In the event that an audit finds a discrepancy between the manufactured product and the technical requirements upon which the approval is based, requirements contained in § 14.11 will be followed.

Final § 14.11, like the proposal, includes requirements for revocation. Final § 14.11(a)(1) and (2), like the proposal, provides that MSHA may revoke for cause an approval issued under the final rule if the conveyor belt (1) fails to meet the technical requirements of the approval, or (2) creates a danger or hazard when used in an underground coal mine. MSHA received no comments on the proposal.

Final § 14.11(b), like the proposal, provides that prior to revoking an approval, the approval holder will be informed in writing of MSHA's intention to revoke. Under the final rule, the notice will (1) explain the reasons for the proposed revocation; and (2) provide the approval holder an opportunity to demonstrate or achieve compliance with the product approval requirements.

Commenters suggested that if MSHA issues a revocation notice, other means besides the internet be used, since not all mine operations and miners have access to the internet. MSHA's existing practice is to notify the mining community of equipment and safety alerts by various means, including the internet, the Agency's district offices and inspectors, and occasionally, via mail.

Final § 14.11(c), like the proposal, provides that upon request, the approval holder will be given the opportunity for a hearing. MSHA's practice is to treat approval holders as ”licensees” under the Administrative Procedure Act (APA, 5 U.S.C. 558). Consistent with this practice, final § 14.11(b) provides that approval holders be given due process considerations prior to revocation of an approval. These considerations include being provided with (1) a written notice of the Agency's intent to revoke a product approval; (2) an explanation of the reasons for the proposed revocation; and (3) an opportunity to demonstrate or achieve compliance with the technical requirements for approval. Commenters suggested that if a hearing is held, miners and their representatives should be able to participate. The administrative procedures for revocation hearings, including participation, will be determined on a case-by-case basis consistent with requirements contained in the APA.

Final § 14.11(d), which is changed from the proposal, requires that if a conveyor belt poses an imminent danger to the safety or health of miners, an approval may be immediately suspended without written notice of the Agency's intention to revoke.

Commenters suggested that MSHA reconsider the proposal since the immediate suspension of conveyor belt approval necessitating removal of conveyor belt could pose serious operational difficulty for mine operators and their employees. They suggested that MSHA develop an expedited procedure to validate any concerns identified and to establish a manageable approach to expeditiously remedy such concerns. The commenters stated that district managers should have the authority to approve alternative approaches to “immediate removal.” Such approaches could establish agreed upon safety precautions permitting miners to remain at work during a conveyor belt removal/replacement cycle.

This final requirement would only be applicable in the event that MSHA discovers during an audit that a conveyor belt poses an imminent danger to miners. However, MSHA believes that it is unlikely that an audit would result in a massive recall of conveyor belt. Under the final rule, MSHA intends that the severity of the hazard identified in the audit would dictate the corrective action required. MSHA believes that, should revocation of an approval become necessary, the Agency will be able to develop procedures that will allow any identified defect to be remedied while maintaining safety and health protection for miners.

Consistent with the Agency's existing practice, revocation of an approval, as the commenter suggests, is a very serious action, taken only to correct a condition likely to cause death or serious physical harm. MSHA's existing regulations in Parts 7 and 15 provide that the Agency may suspend an approval without written notice, if there is an imminent danger to miners, pending completion of revocation procedures. The final rule is changed to provide that in the case of an imminent danger to miners, the approval may be immediately suspended. This is consistent with MSHA's other approval regulations.

MSHA believes that removal of belts that pose an imminent danger is necessary to protect miners from potential injury and life-threatening hazards. Once an approval is suspended, MSHA will notify the mining community of this action.

Final § 14.20, like the proposal, requires that conveyor belts for use in underground coal mines be flame resistant and tested under final § 14.20 (a) or (b). Under final paragraph (a), testing must be in accordance with the flame test specified in final § 14.22. Under final paragraph (b), testing must be in accordance with an alternate test determined by MSHA to be equivalent under existing § 6.20 and final § 14.4(e). This testing would assure that conveyor belts meet the specifications in the final rule, are difficult to ignite, and are highly resistant to flame propagation. MSHA recognizes that other tests may exist or be developed in the future which could be appropriate for evaluating flame-resistant qualities of conveyor belt for use in underground coal mines. Under final paragraph (b), once a determination of equivalency is made, MSHA will publish a notice in the
Federal Register
. MSHA received no comments on the proposal.

Final § 14.21, like the proposal, describes the principal parts of the BELT apparatus used to test for flame resistance of conveyor belts. Final § 14.21(a), like the proposal, requires a horizontal test chamber 66 inches (167.6 cm) long by 18 inches (45.7 cm) square (inside dimensions). The chamber dimensions were established from the large-scale belt flammability studies. The test chamber must be constructed from 1 inch (2.5 cm) thick Marinite I®, or equivalent insulating material. Should minor cracking occur in the Marinite I®, it can be repaired using an appropriate sealant. However, the Marinite I® or equivalent insulating material must be replaced and not repaired if the crack or break is across the total thickness. MSHA received no comments on the proposal.

Final § 14.21(b), like the proposal, requires a 16-gauge (0.16 cm) stainless steel duct section, tapering over at least a 24-inch (61 cm) length from a 20-inch (51 cm) square cross-sectional area at the test chamber connection to a 12-inch (30.5 cm) diameter exhaust duct, or equivalent. The interior surface of the tapered duct section must be lined with
1/2
inch (1.27 cm) thick ceramic blanket insulation or equivalent insulating material. The use of stainless steel minimizes corrosion and the tapered duct section allows a smooth airflow to enter the exhaust duct. The tapered duct must be lined with ceramic blanket insulation to minimize high duct temperatures and thermal expansion. MSHA received no comments on the proposal.

Final § 14.21(c), like the proposal, requires a U-shaped gas-fueled impinged jet burner igniting source, measuring 12 inches (30.5 cm) long and 4 inches (10.2 cm) wide, with two parallel rows of 6 jets each. Each jet must be spaced alternately along the U-shaped burner tube. The 2 rows of burner jets must be slanted so that they point toward each other and the flame from each jet impinges upon each other in pairs. The burner fuel must be at least 98 percent methane (technical grade) or natural gas containing at least 93 percent methane.

A burner unit available from the Solarflo® Corporation Model U-10, using Model Number 640 jets producing 7,500 BTU per hour per jet, is suitable to comply with these specifications. This burner unit, which is an impinged jet burner, is the burner type used as the igniting source in the BELT. Any other burner unit which meets the specifications would be appropriate. The burner in the final rule was referenced because it is commercially available and provides a reliable, reproducible ignition source that can burn methane or natural gas. The BELT results correlate well with the large-scale belt flammability test results when using the burner in the final rule and gaseous fuel in conjunction with the other parameters. MSHA received no comments on the proposal.

Final § 14.21(d), like the proposal, requires a removable steel rack, consisting of 2 parallel rails and supports that form a 7 ±
1/8
inches (17.8 ± 0.3 cm) wide by 60 ±
1/8
inches (152.4 ± 0.3 cm) long assembly to hold a belt sample. Under final paragraph (d)(1), like the proposal, the 2 parallel rails, with 5 ±
1/8
inches (12.7 ± 0.3 cm) space between them comprise the top of the rack. The rails and supports must be constructed of slotted angle iron with holes along the top surface. Typically, commercially available, 1 inch (2.5 cm) by 1
3/4
inch (4.4 cm) by
1/8
inch (0.3 cm) thick angle iron with predrilled
1/4
inch (0.6 cm) diameter holes spaced 1 inch (2.5 cm) apart is used. Under final paragraph (d)(2), the top surface of the rack must be 8 ±
1/8
inches (20.3 ± 0.3 cm) from the inside roof of the test chamber.

The rack materials and dimensions were selected so that the rack adequately supports the belt sample and withstands repeated tests with only minor warping due to heat while minimizing the rack's thermal mass. The distance from the top surface of the rack to the inside roof of the test chamber was established based on the comparison of the test results and the development of correlation parameters with the large-scale belt flammability studies.

The BELT apparatus does not contain any pollution control system for exhaust fumes created during flame tests. If an applicant chooses to build a test apparatus and perform the BELT method for research or quality assurance purposes, some type of effluent control may be required to meet State and local

emission standards. MSHA received no comments on the proposal.

Final § 14.22, like the proposal, specifies the test for flame resistance of conveyor belts. The final rule addresses variables that have an appreciable effect on the test results in order to maintain consistency in the testing method. Small changes in barometric pressure, humidity, and ambient temperature should not have a significant effect on the test results. Published literature indicates that small changes in atmospheric pressure have little or no effect on flame propagation. Variations in ambient temperature did not show a trend in either decreasing or increasing the burn damage of belts tested. A small increase or decrease of relative humidity will not have a significant effect on the flame propagation because conveyor belts are typically impervious to moisture.

Final § 14.22(a), like the proposal, specifies the test procedure sequence. Technical dimensions and tolerances that are critical to the proper conduct of the test and to maintain consistency in the test method are specified in this final rule, while dimensions that have no effect on the test results are specified without a tolerance and are indicated as approximate. MSHA received no comments on the proposal.

Final § 14.22(a)(1), like the proposal, requires that three belt samples, 60 ±
1/4
inches (152.4 ± 0.6 cm) long by 9 ±
1/8
inches (22.9 ± 0.3 cm) wide, be laid flat at 70 ± 10 °F (21 ± 5 °C) for at least 24 hours prior to the test. It assures that the samples are at laboratory temperatures, facilitates sample mounting, and minimizes curling during the test. MSHA received no comments on the proposal.

A conveyor belt that has been rolled prior to testing is more likely to rebound to the rolled position during testing. This action is considered curling, and may lead to erroneous test results. Samples which have been rolled prior to testing can develop sufficient curling forces to overcome the holding capabilities of the cotter pins installed to retain the sample on the rack. Should curling occur, MSHA would need to test additional samples in order to assure that reliable test results have been obtained. The Agency has determined that the use of flat, unrolled samples greatly reduces the occurrence of curling.

Final § 14.22(a)(2), like the proposal, requires that for each of three tests, one belt sample be placed on the rails of the rack with the load carrying surface facing up so that the sample extends 1 ±
1/8
inch (2.5 ± 0.3 cm) beyond the front of the rails and 1 ±
1/8
inch (2.5 ± 0.3 cm) from the outer lengthwise edge of each rail. This centers the longitudinal axis of the sample along the centerline of the rack with the first inch of the sample in the ignition area and not in contact with the rack. The 1 ±
1/8
inch (2.5 ± 0.3 cm) overlap that extends beyond the front of the rail facilitates ignition of the belt sample by minimizing the thermal heat sink created by the sample rack. A greater overlap can result in the sample curling or pulling back from the burner during the ignition period. Many PVC belts are constructed with a solid woven carcass and the top or bottom cover is not designated. If a belt is constructed without a designated top cover, either side of the belt could be mounted as the load carrying surface. MSHA received no comments on the proposal.

Final § 14.22(a)(3), like the proposal, requires the sample to be fastened to the rails of the rack with steel washers and cotter pins. The final rule provides the following requirements. The cotter pin must extend at least
3/4
inch (1.9 cm) below the rails. Equivalent fasteners may be used. A series of 5 holes approximately
9/32
inch (0.7 cm) in diameter must be made along both edges of the belt sample, starting at the first rail hole within 2 inches (5.1 cm) from the front edge of the sample. The next hole must be made 5 ±
1/4
inches (12.7 ± 0.6 cm) from the first, the third hole must be made 5 ±
1/4
inches (12.7 ± 0.6 cm) from the second, the fourth hole must be made approximately midway along the length of the sample, and the fifth hole must be made near the end of the sample. A washer must be placed over each sample hole, and a cotter pin must be inserted through the hole and spread apart to secure the sample to the rail. MSHA received no comments on the proposal.

Under the final rule, the locations of the fasteners were chosen so that the majority (6 of 10) would be in the ignition area to minimize the belt sample pulling away from the burner, or lifting and curling during the ignition period. Specific fastener locations with tolerances for holes 4 and 5 were not identified. It is MSHA's experience that the exact location of these fasteners is not critical to the retention of the sample and does not influence the test results. Additional fasteners can be used in the ignition region for belts that lift excessively. The fasteners facilitate the secure mounting of the belt sample and are too small to influence the test results by heat absorption, even if additional fasteners are used.

Final § 14.22(a)(4), like the proposal, requires centering the rack and sample in the test chamber with the front end of the sample 6 ±
1/2
inches (15.2 ± 1.27 cm) from the entrance. This location reduces the disturbance of the airflow entering the test chamber. The location is based on the correlation of the BELT results to the results of large-scale belt flammability studies. MSHA received no comments on the proposal.

Final § 14.22(a)(5), like the proposal, requires measuring the airflow with a 4-inch (10.2 cm) diameter vane anemometer, or equivalent device, placed on the centerline of the belt sample 12 ±
1/2
inches (30.5 ± 1.27 cm) from the entrance of the chamber. Airflow passing through the chamber must be adjusted to 200 ± 20 ft/min (61 ± 6 m/min). MSHA received no comments on the proposal.

The airflow and measuring location are based on comparison of the test results with the large-scale belt flammability studies. MSHA identified the variables that affect the conditions of the test, such as air velocity and the ambient air and tunnel temperatures while conducting several hundred belt flame tests.

Final § 14.22(a)(6), like the proposal, requires that, before starting the test on each sample, the inner surface temperature of the chamber roof be measured at points 6 ±
1/2
, 30 ±
1/2
, and 60 ±
1/2
inches (15.2 ± 1.27, 76.2 ± 1.27, and 152.4 ± 1.27 cm) from the front entrance must not exceed 95° Fahrenheit (35° Centigrade) at any of these points with the specified airflow passing through the chamber. In addition, the temperature of the air entering the chamber during the test on each sample must not be less than 50° Fahrenheit (10° Centigrade).

Under the final rule, the
1/2
inch (1.27 cm) tolerance is needed for the temperature measurement points to maintain consistency of the test conditions. These temperature limits are specified to maintain the repeatability of the test results and to maintain the comparability obtained with the large-scale belt flammability studies. An upper limit on airflow and a lower limit on the temperature of the air entering the test chamber are included as test control parameters. These test parameters are designed to assure the test chamber temperature meets certain restrictions for each of the three tests. MSHA received no comments on the proposal.

Final § 14.22(a)(7), like the proposal, requires centering the burner in front of the sample's leading edge with the plane, defined by the tips of the burner jets,
3/4
±
1/8
inch (1.9 ± 0.3 cm) from the front edge of the belt. The burner must be centered in front of the sample's leading edge, so that when ignited the

flames from the two rows of jets impinge in front of the belt's edge and distribute uniformly on the top and bottom surfaces of the sample. A
1/8
inch tolerance was added to the location dimension for the burner jets. This tolerance is important because it maintains the consistency of the test method. The alignment of the burner provides for the uniform heating of the sample, which is necessary to maintain the consistency of the test results.

The exact burner orientation needed to provide uniform distribution of flame on the top and bottom surfaces of the test sample may vary depending upon the belt sample's thickness. Based upon comparison tests and experience gained in developing the BELT method, the burner must be slanted downward from the vertical, at approximately a 15° angle, and located
3/4
±
1/8
inch (1.9 ± 0.3 cm) from the front edge of the belt. Slanting of the burner compensates for the buoyancy of the burner flames. The appropriate burner alignment necessary for uniform distribution of flame may be determined by adjustments prior to igniting the samples under test. MSHA received no comments on the proposal.

Final § 14.22(a)(8), like the proposal, requires that, with the burner lowered away from the sample, the gas flow to the burner must be set at 1.2 ± 0.1 standard cubic feet per minute (SCFM) (34 ± 2.8 liters per minute) and be maintained throughout the 5 to 5.1 minute ignition period. One standard cubic foot is the amount of gas which occupies one cubic foot at 72 °F and one atmosphere pressure (1 cubic liter at 22 °C and 101 kilopascals). The specified gas flow provides a stable flame and is based on a comparison of the test results with the large-scale belt flammability studies. MSHA received no comments on the proposal.

Final § 14.22(a)(9), like the proposal, provides that after applying the burner flame to the front edge of the sample for a 5 to 5.1 minute ignition period, lower the burner away from the sample and extinguish the flame. MSHA received no comments on the proposal.

Final § 14.22(a)(10), like the proposal, provides that after the completion of each test, the undamaged portion across the entire width of the sample be determined. Determining the undamaged portion across the entire width of the sample is necessary for specifying acceptable performance of the conveyor belt. Blistering without charring does not constitute damage because blistering could result from heat exposure rather than the presence of flame. MSHA received no comments on the proposal.

Final § 14.22(b), like the proposal, requires that each tested sample must exhibit an undamaged portion across its entire width. This requirement is based on the correlation of the BELT results to the results of large-scale belt flammability studies. MSHA received no comments on the proposal.

Final § 14.22(c), like the proposal, provides that MSHA may modify the procedures of the flammability test for belts constructed of thicknesses more than 3/4 inch (1.9 cm). No comments were received on this provision.

Final § 14.23, like the proposal, provides that MSHA may approve a conveyor belt that incorporates technology for which the requirements of this final rule are not applicable if the Agency determines that the conveyor belt is as safe as those which meet the requirements of the final rule. This final rule is intended to facilitate the introduction of new technology or new applications of existing technology with respect to conveyor belts. MSHA received no comments on the proposal.

Part 75—Mandatory Safety Standards—Underground Coal Mines Subpart L—Fire Protection

Final § 75.1108 requires the use of improved flame-resistant conveyor belt, as approved under Part 14, in underground coal mines. This requirement is consistent with Panel Recommendation 3.

Final § 75.1108(a) is changed from the proposal and allows mine operators until December 31, 2009 to place in service in underground coal mines conveyor belts approved under Part 14 or accepted under existing Part 18.

Final § 75.1108(b) is changed from the proposal and requires that effective December 31, 2009, conveyor belts placed in service must be approved under Part 14. In the event that MSHA determines that Part 14 approved belt is not available, the Agency will consider an extension of the one-year transition period. Notice of an extension would be published in the
Federal Register
.

Final § 75.1108(c) is added in the final rule in response to comments and to clarify the Agency's intent with respect to the use of existing conveyor belt. It requires that effective December 31, 2018, all conveyor belts used in underground coal mines must be approved under Part 14.

Commenters were opposed to permitting the purchase of either Part 18 or Part 14 belt for a period of one year because mine operators could stockpile Part 18 belt, and use that belt underground for an extended period of time. They stated that Part 14 belt should be required to be purchased and installed in the mine upon the effective date of the final rule. These commenters stated that mine operators should only be permitted to use Part 18 belts already in service or in their inventory.

In response to comments, MSHA included a new paragraph in the final rule that clarifies the Agency's intent with respect to the use of existing belt. Under the final rule, operators will have up to ten years to use existing belt, which has been placed into service by December 31, 2009. This assures that all belt used in underground coal mines will meet the requirements of Part 14 within ten years.

The final rule language also has been changed from the proposal to include the phrase, “placed in service” instead of “purchased for use.” The Agency intends that “placed in service” clarifies that all new conveyor belts installed one year after the publication date of this final rule will comply with Part 14 requirements.

A commenter stated that mine operators should be permitted to continue to remove belts, trim them down, and re-install the belt in their underground mines. Under the final rule, mine operators may continue these practices if the belts have been placed in service in their mines prior to or during the one-year transition period, that is, the one-year period when either Part 18 or Part 14 belt may be purchased. Belts that have been placed in service prior to or during the one-year transition period can be used until December 31, 2018. This belt may not be marketed for use in other underground coal mining operations after December 31, 2009, but may be used by the same mine operator.

Existing § 75.1108-1 is removed because it is no longer needed.

3. Conforming Amendments

This final rule requires conforming amendments to existing approval regulations in Parts 6 and 18.

Part 6—Testing and Evaluation by Independent Laboratories and Non-MSHA Product Safety Standards

Section 6.2 concerning the definition of “Equivalent non-MSHA product safety standards,” and § 6.20(a)(1) concerning applications for equivalency, are both amended by adding Part 14 (Conveyor Belts in Underground Coal Mines). These are administrative and conforming provisions.

Part 18—Electric Motor-Driven Mine Equipment and Accessories

Part 18 is amended by removing the term “conveyor belt” from existing

§§ 18.1, 18.2, 18.6(a), 18.6(i), 18.9(a) and 18.65. The revised sections of Part 18 would only relate to acceptance of hoses, and existing § 18.6(c) would be removed and reserved. MSHA is making these conforming amendments to Part 18 because applications for approval of conveyor belts will be considered only under Part 14.

B. Fire Prevention and Detection and Approval of the Use of Air From the Belt Entry To Ventilate Working Sections

1. General

This final rule enhances miner safety and health by including improved requirements for the use of air from the belt entry, belt entry and conveyor maintenance, and fire prevention and detection. This final rule includes requirements on: Approval of using air from the belt entry to ventilate working sections; replacement of point-type heat sensors with carbon monoxide sensors in all coal mines; training of AMS operators; requirements for escapeways; limits on respirable dust in the belt entry; maximum and minimum air velocities in the belt entry; standardized tactile signals for lifelines; use of smoke sensors in mines using air from the belt entry; and improved belt entry maintenance.

Consistent with the Panel's recommendations this final rule, like the proposal, includes requirements applicable to mines that use air from the belt entry to ventilate a working section, and requirements applicable to all underground coal mines. The requirements applicable to all underground coal mines include: Airlocks along escapeways; minimum belt entry air velocity; standardized tactile signals for lifelines; maintaining higher ventilating pressures in the primary escapeway; replacing point-type heat sensors with carbon monoxide sensors for fire detection in belt entries; and belt entry maintenance.

In addition, this final rule, like the proposal, revises existing requirements related to the use of carbon monoxide sensors for fire detection along belt lines in all mines. These include sensor spacing, establishing a warning level, responses to warning and malfunction signals, testing and calibration requirements, and minimum air velocity to incorporate the use of carbon monoxide sensors.

This section of the final rule addresses the following Panel recommendations:

• Recommendation 5—Belt entry and conveyor belt maintenance;

• Recommendation 6—Special requirements for the use of belt air;

• Recommendation 7—Belt air approval recommendation;

• Recommendation 8—Discontinuing point-type heat sensors;

• Recommendation 9—Smoke sensors;

• Recommendation 10—Use of diesel-discriminating sensors;

• Recommendation 12—AMS operator training certification;

• Recommendation 13—Minimum and maximum air velocities;

• Recommendation 14—Escapeways and leakage;

• Recommendation 15—Lifelines;

• Recommendation 16—Point-feeding; and

• Recommendation 17—Respirable dust.

2. Discussion of the Final Rule

Part 48—Training and Retraining of Miners Subpart B—Training and Retraining of Miners Working at Surface Mines and Surface Areas of Underground Mines

Final § 48.27(a), like the proposal, revises the existing rule to require that miners assigned to new work tasks as AMS operators be trained before they perform these duties. This requirement is consistent with Panel recommendation 12, that MSHA require the qualification and certification of AMS operators. This requirement applies to AMS operators that are monitoring methane or carbon monoxide sensors used to meet the requirements of: §§ 75.323(d)(1)(ii)—Actions for excessive methane; 75.340(a)(1)(ii) and 75.340(a)(2)(ii)—Electrical installations; 75.350(b) and 75.350(d)—Use of air from a belt entry to ventilate working sections; or 75.362—On-shift examinations. MSHA believes that AMS operators must have the background, experience, and training to assure that proper actions are taken in response to AMS signals, including alerts, alarms, and malfunctions, to provide the highest degree of safety to all affected miners.

Existing § 48.23 requires that a training plan be approved by MSHA for specific tasks, and that the training be provided prior to the miner performing those tasks. The Agency has added AMS operators to the list of tasks covered by this provision.

A commenter stated that AMS operators should participate in a simulated mine emergency as part of the initial training. While mine operators may elect to include a simulated mine emergency in the initial task training for AMS operators, the final rule does not require simulated mine emergency training. The responsible person designated under existing § 75.1501 is required to take charge during a mine emergency. That person must be trained annually in a course of instruction in mine emergency response.

Another commenter stated that this task training duplicates the annual training already required for AMS operators and qualified persons. Under the final rule, the initial task training and annual retraining are separate requirements. The initial task training is designed to assure that the AMS operator has the necessary skills to operate the AMS prior to assuming responsibility for that task. The annual retraining in § 75.351(q) is designed to reinforce existing skills and to assure that the AMS operator remains capable of doing the task, with an understanding of current mining operations.

Part 75—Mandatory Safety Standards—Underground Coal Mines

Subpart B—Qualified and Certified Persons

Section 75.156—AMS Operator, Qualifications

Final § 75.156(a), like the proposal, is new and requires that to be qualified as an AMS operator, a person shall be provided with task training on duties and responsibilities at each mine where an AMS operator is employed in accordance with the mine operator's approved Part 48 training plan. This requirement is consistent with Panel recommendation 12, that MSHA require the qualification and certification of AMS operators.

MSHA recognizes that a significant portion of the knowledge necessary for an AMS operator is mine-specific and must be tailored to conditions at each mine. This task training must be provided at each mine where the AMS operator performs these duties due to different AMS designs, variations in ventilation plans and systems, complexities of evacuation plan requirements, and uniqueness of the mine configurations. MSHA has developed a training guide to assist mine operators in identifying essential elements to be included in the training plan.

A commenter stated that this training should not be included with the Part 48 annual retraining. This commenter was concerned about diluting the Part 48 training and wanted the AMS operator training to be separate.

A commenter asked if MSHA would develop an initial training program for AMS operators. A commenter also stated that a copy of the initial training plan should be furnished to miners or a representative of miners two weeks

before its submission to the district manager.

The new initial task training for AMS operators does not impact other existing training requirements in Part 48. MSHA has developed a model training program that mine operators can tailor to fit specific mining conditions and equipment at their mines. Consistent with existing § 48.23(d), mine operators must furnish a copy of the training plan to a miner's representative two weeks prior to its submission to the district manager.

Final § 75.156(b), like the proposal, requires that an AMS operator must be able to demonstrate to an authorized representative of the Secretary that he/she is qualified to perform the assigned tasks. The inspector will make a determination about the AMS operator's qualifications during regular inspections. In making this determination, the inspector will ask the AMS operator questions regarding: The responses to AMS signals; notification requirements; approved mine plans; recordkeeping requirements; and AMS operating requirements. This assures that the AMS operator fully understands how to operate and respond to the AMS.

Subpart D—Ventilation

Actions for Excessive Methane

During the rulemaking process and at each of the public hearings, MSHA solicited comments on whether the Agency should establish a new provision to require that changes or adjustments be made to reduce the concentration of methane when a range between 0.5 and 1.0 percent methane is present in the belt entry as measured 200 feet outby the section loading point. In addition, MSHA specifically requested comments on the level at which changes or adjustments should be made. MSHA received no comments regarding a specific level at which changes or adjustments should be made.

The Agency's request for comments was based on Panel Recommendation 18, which stated that the district manager should regularly evaluate any working section that has methane readings at or above 0.5% methane, measured 200 feet outby the tailpiece of the belt. This recommendation applied only to mines that use air from the belt entry to ventilate working sections.

A commenter agreed with the Panel's recommendation and supported a new standard to require that corrective actions be made when methane levels range between 0.5 and 1.0 percent, measured 200 feet outby the section loading point. This commenter did not recommend a specific level, but did state that methane levels should be reduced to the lowest possible level.

Several commenters were opposed to a new standard stating that existing standards, combined with methane limits and tests already in place for the working section, provide adequate protection. Commenters also stated that any attempt to reduce methane concentrations in the belt entry below 1.0 percent could create undesired pressure differentials from the belt entry to the intake air course. MSHA agrees that this may be true for blowing ventilation systems, but not for exhausting ventilation systems.

Further, according to commenters, adjustments to reduce the methane concentration in the belt entry to a range below 0.5 to 1.0 percent may not be possible because intake methane levels up to 1.0 percent are permitted. MSHA notes that existing standards require that when 1.0 percent or more methane is present in the belt entry, changes or adjustments must be made to reduce the concentration to less than 1.0 percent.

Consistent with the Panel's recommendation, MSHA is not including a new standard in the final rule, but intends to change the Agency's inspection procedures to require that inspectors measure methane in the belt entry at a point 200 feet outby the section tail piece. This will allow the Agency to determine the effect of the use of air from the belt entry on methane levels in the working section.

The Agency recognizes that moving air from the intake to the belt may reduce the methane concentration 200 feet outby the section loading point, but may not result in reduced methane concentrations on the working section because the total air quantity delivered to the section will not be increased.

Section 75.333(c)(4)—Ventilation Controls

Final § 75.333(c)(4), like the proposal, is a new provision requiring that an airlock be established where the air pressure differential between air courses creates a static force exceeding 125 pounds on closed personnel doors along escapeways.

The final rule is responsive to Panel Recommendation 14 that personnel doors along escapeways should be installed to establish an airlock when the static force created by the pressure differential exceeds 125 pounds. High pressure differentials on doors can lead to serious injuries to miners opening and closing these doors. Providing an airlock between entries provides a safe means for miners to travel between two air courses. An airlock consists of a pair of doors installed in ventilation controls between two air courses, which form a pressure equalizing chamber. A miner would open the first door, enter the airlock, and close the door. After equalizing the pressure, the miner can then open the second door and move into the adjacent entry. The need for safe access is critical during a mine emergency evacuation when miners must move between adjacent air courses.

The Panel recommended a standard based upon the force on the personnel door of 125 pounds. This force on any specific door is dependent upon the pressure differential across the ventilation control, and the surface area of the personnel door. For the same pressure differential, the force required to open a personnel door increases proportionately with surface area.

In order to calculate the force exerted by a pressure differential, the pressure differential and door dimensions must first be determined. As reflected in the Panel's example, a 125-pound force limitation on a 3-foot by 4-foot door would be created by a pressure differential of 2.0 inches of water. A 3-foot by 4-foot personnel door has an area of 1,728 square inches (3′ × 4′ = 12 square feet × 144 in
2
/ft
2
= 1,728 square inches). For a force of 125 pounds, the distribution is 0.0725 pounds per square inch (125 lb ÷ 1,728 in
2
= 0.0725 psi). Using the conversion factor, 1 psi = 27.68 inches of water, the equivalent pressure differential can be calculated to be 2.0 inches of water (0.0725 psi × 27.68 in. H
2
O/psi = 2.0 inches of water).

A commenter supported the proposal to require airlocks, but suggested spacing the airlocks at intervals not to exceed 1,000 feet for the entire length of the escapeway from the section to the surface. Consistent with the Panel recommendation, MSHA believes that airlocks should only be required when the force on a personnel door between air courses along escapeways could result in injury to miners when opening or closing the door. If the force is less than 125 pounds, miners should not experience difficulty opening or closing the door. Requiring airlocks on doors with lower pressures would unnecessarily delay miners in moving between escapeways.

Some commenters suggested the proposal be modified to allow the use of alternative measures such as flaps and sliders to comply with the proposed requirement for airlocks. Another suggested that airlocks only be required when alternatives such as hinged or sliding doors or flaps do not reduce the force on the door to less than 125 pounds. In the preamble to the proposal, MSHA stated mine operators may have

alternatives to establishing airlocks, including reducing the size of a personnel door, providing a flap, or sliding door, which may reduce the static pressure to below 125 pounds. Under the final rule, the Agency will allow alternatives to reduce the force on a door. Airlocks are only required when the force exceeds 125 pounds. Mine operators have the option to use alternatives to reduce the force on a door.

A commenter suggested that the final rule should state that airlocks only be required between adjacent escapeways when the force on the door exceeds 125 pounds. However, such a change would not be consistent with the Panel's recommendation. In the final rule, MSHA intends that airlocks be established where the air pressure differential between air courses along escapeways creates a static force exceeding 125 pounds on closed personnel doors.

During the rulemaking process and at the public hearings, the Agency solicited comments on other suitable pressures. No comments were provided. MSHA also solicited comments on the number of airlocks that would be required under the proposal and the associated cost. One commenter provided data from 14 mines, which identify the number of airlocks required in each mine based upon the proposed rule. MSHA has considered this comment in the regulatory economic analysis.

Section 75.350—Belt Air Course Ventilation

Final § 75.350(a)(2), like the proposal, revises the existing standard. It requires that one year after the publication of the final rule, the air velocity in the belt entry must be at least 50 feet per minute. It also requires that air velocities be compatible with all fire detection systems and fire suppression systems used in the belt entry.

MSHA has revised the existing standard because of changes to final § 75.1103-4 (fire detection systems), which replaces point-type heat sensors for early-warning and detection of conveyor belt fires with carbon monoxide fire sensor systems in all belt entries. When point-type heat sensor systems are used for fire detection, no minimum velocity in the belt entry is needed because the sensors are heat-activated. When carbon monoxide sensors are used, a minimum air velocity of 50 feet per minute is necessary to assure that carbon monoxide gas produced by a fire will be carried by the air current to the downwind sensors in a timely manner. This minimum velocity has been required for over two decades in mines using carbon monoxide sensors for fire detection, and has been shown to provide effective early warning.

The final rule, like the proposal, allows mine operators to request lower velocities in the ventilation plan in areas where the minimum velocity cannot be maintained. Where the district manager approves such a plan, carbon monoxide sensor spacing would have to be reduced to no greater than 350 feet. NIOSH research and Agency experience show that the reduced spacing is necessary to assure carbon monoxide resulting from a fire more quickly reaches downwind sensors.

Commenters questioned where and how MSHA would make air velocity measurements under the proposal. Consistent with existing inspection procedures, MSHA uses representative cross-sectional areas when determining air velocities. Large areas (such as belt channels, boom holes, and fall areas) and restricted areas (such as overcasts) are not representative and would not be used to determine air velocities.

Another commenter supported the proposal but stated that the district manager should conduct an investigation, including a ventilation survey, prior to approving a lower velocity in the ventilation plan. Prior to approving changes in the ventilation plan, the district manager receives recommendations from inspectors, supervisors and specialists who are familiar with specific conditions in the mine. The district manager can also direct that further investigation or review be made at the mine which could include an underground ventilation survey. However, the Agency does not believe it is necessary to conduct an underground investigation in all cases and has not included such a requirement in the final rule.

Final § 75.350(b), like the proposal, revises the existing standard. It provides that the use of air from a belt air course to ventilate a working section be permitted only when evaluated and approved by the district manager in the ventilation plan. It requires the mine operator to provide justification in the plan that the use of air from the belt entry affords at least the same measure of protection as where belt haulage entries are not used to ventilate working places.

This final rule addresses Panel Recommendation 7, which states that MSHA should evaluate, as part of the approval of the mine ventilation plan, the safety of the use of air from the belt entry to ventilate working sections. The Panel further stated that the district manager must take special care to evaluate whether the air from the belt entry can be routed to the working face in a manner that is safe for all miners involved.

The final rule has been changed from the proposal to reduce to two months the time allowed for mine operators currently using air from the belt entry to submit a revised ventilation plan to the district manager. This change was made in response to commenters and to clarify MSHA's intent that mine operators submit their revised ventilation plans as soon as feasible after the final rule becomes effective. MSHA believes that the two-month period allows adequate time.

The Agency will approve ventilation plans and revisions that assure that the use of air from the belt entry to ventilate working sections affords at least the same measure of protection as where belt haulage entries are not used to ventilate working places. The district manager will notify the operator in writing of the approval or denial of approval of a proposed ventilation plan or proposed revision. The district manager will send a copy of this notification to the miners' representative. If the district manager denies approval of a proposed plan or revision, the district manager will notify the operator, in writing, of the deficiencies and the deadline for submitting the required information.

If the operator does not respond by the deadline, or if issues can not be resolved, the district manager will send a second letter notifying the operator: (1) That the plan has not been approved; (2) of the deadline for submitting any required information; and (3) that after that deadline, if the operator does not submit the required information, the plan will be revoked. If the operator does not submit the required information in response to the second letter, the district manager will send a letter notifying the operator that the plan is revoked.

Operating after the revocation date is a violation of the existing standard requiring an approved ventilation plan. A citation would be issued for failure to have an approved plan, as required by the existing ventilation standard.

During the rulemaking process and at the public hearings, MSHA solicited comments on this proposal. The Agency was particularly interested in comments related to circumstances in which the district manager does not approve the continued use of air from the belt entry to ventilate working sections.

A commenter stated that the use of air from the belt entry should not be

allowed. However, the commenter suggested that for consistency, the Assistant Secretary should review all plan revisions proposing the use of air from the belt entry. If the district manager makes the decision, the commenter recommended that MSHA develop criteria for plan approval that would hold mine operators to a higher standard. The commenter further stated that when the use of air from the belt entry is disapproved, its use should be discontinued immediately.

Other commenters supported the use of air from the belt entry to reduce methane levels, and stated that mines currently using that air to ventilate working sections should be allowed to continue. Some of these commenters also indicated that if the district manager decides to disapprove the use of air from the belt entry, a reasonable transition period should be allowed for the mine operator to make the necessary ventilation changes.

Mine ventilation plans are designed to reflect the specific conditions at each operation. The MSHA personnel most familiar with those mines—local mine inspectors, specialists and supervisors—possess the technical expertise and are in the best position to make recommendations concerning plan approvals. Consistent with the Panel's recommendation, MSHA believes that the district manager is the appropriate senior official to make plan approval determinations including whether air from the belt entry should be used to ventilate working sections. To facilitate consistency with respect to Agency policy, MSHA will develop criteria for district managers to use when granting approval for the use of belt air.

There are potential sources of fire in belt conveyor entries, and the use of air from the belt entry to ventilate working sections can result in contaminants from a fire being carried to the working section. However, the Agency recognizes that there may be compelling reasons to use air from the belt entry as an intake air source for the section. These reasons may include the need for additional ventilation to dilute methane, or the need for fewer entries to reduce ground control hazards.

The district manager may approve the use of air from the belt entry to ventilate the working section only in sections developed with three or more entries. Under existing standards, a petition for modification will be required for two-entry mine development to use air from the belt entry to ventilate the working section, and to operate the belt in the return air course. The final rule does not affect existing granted petitions for modification at two entry mines.

In the preamble to the proposal, the Agency indicated that when the district manager makes a determination that the use of air from the belt entry would no longer be permitted in the mine ventilation plan, continued use of that air would be permitted until completion of current mining. MSHA recognizes that a transition period may be necessary, and that some mines can implement the change more readily than others. In response to commenters, the district manager, as part of the plan approval process, will make a determination on the duration of this transition period based on the specific conditions at each mine.

Commenters also stated that the Agency should not allow the use of air from the belt entry to ventilate working sections until MSHA establishes standards, as part of the conveyor belt approval process, for smoke density and toxicity. The Agency recognizes that smoke density and toxicity can impact escape during a mine fire. To address these areas, MSHA issued a Request for Information to solicit input from the mining community and other interested parties (73 FR 35057). MSHA believes that the use of air from the belt entry to ventilate working sections can be made as safe as not using such air. As noted by the Panel, conditions such as high methane levels and deep ground cover can present serious safety concerns to miners. The use of air from the belt entry in these circumstances may result in a safer mine environment.

In 2006, a fatal fire occurred at the Aracoma Alma Mine No. 1 in West Virginia. Public comments made during this rulemaking implied that deficiencies in the ventilation methods and safety measures in place at Aracoma at the time of the fire were approved by MSHA in the ventilation plan.

However, the accident investigation revealed that the Aracoma mine was not ventilated as specified and required in the approved ventilation plan. In the accident report, MSHA identified 25 violations of safety standards as contributing to the accident. The Agency concluded that the two fatalities would have been prevented had the mine operator fully complied with MSHA standards.

Final § 75.350(b)(3), revises the existing standard. Paragraph (b)(3)(i), like the proposal, requires that the average concentration of respirable dust in the belt air course, when used as a section intake air course, must be maintained at or below 1.0 mg/m
3
. Paragraph (b)(3)(ii), like the proposal, requires that where miners on the working section are on a reduced respirable coal mine dust standard that is below 1.0 mg/m
3
, the average concentration of respirable dust in the belt entry must be at or below the lowest applicable respirable dust standard on that section. Paragraph (b)(3)(iii), like the proposal, requires that a permanent designated area (DA) for dust measurements must be established at a point no greater than 50 feet upwind from the section loading point in the belt entry when the belt air flows over the loading point or no greater than 50 feet upwind from the point where belt air is mixed with air from another intake air course near the loading point. The DA must be specified and approved in the ventilation plan.

Final § 75.350(b)(3) is consistent with Panel Recommendation 17. The Panel stated that respirable coal mine dust concentrations in the air coursed through a belt conveyor entry, and used to ventilate working sections, should be as low as feasible and must not exceed the existing standard of 1.0 mg/m
3
. The Panel also stated that district managers should have the authority to require improvements in dust control in the belt entry if the dust concentration exceeds an 8-hour time-weighted average of 1.0 mg/m
3
or raises the concentration in that section above the exposure limit.

Reduced standards are frequently established on working sections due to presence of respirable quartz. The existing exposure limit for respirable coal mine dust is 2.0 mg/m
3
when quartz levels are five percent or less. This standard is reduced when respirable dust in the mine atmosphere contains more than five percent quartz. Reduced standards are computed by dividing the percent of quartz measured in the mine atmosphere into the number ten. For example, if the mine atmosphere contains 20 percent quartz, the reduced standard would be 0.5 mg/m
3
(10/20 = 0.5 mg/m
3
). The purpose of a reduced standard is to limit miner exposure to respirable quartz.

The final rule, like the proposal, assures that the respirable coal mine dust exposure of miners on the working section would not be increased by the use of air from the belt entry. For example, if the standard for the continuous miner operator (the designated occupation) is 2.0 mg/m
3
and the reduced standard for the roof bolter on the same working section (a designated area) is 0.8 mg/m
3
, the average concentration of respirable dust in the belt entry used to ventilate that working section must not exceed 0.8 mg/m
3
. This is because 0.8 mg/m
3
is the lowest applicable respirable dust standard on the section.

If a mine operator is unable to effectively reduce the respirable dust

levels in the belt entry to meet this requirement, the district manager will have the authority to revoke the ventilation plan which allowed the use of air from the belt entry to ventilate the working section.

MSHA believes that technology is available to effectively lower respirable dust levels in the belt entry. Because a principal source of respirable dust is at belt transfer points, technologies such as improved water sprays may reduce dust concentrations. If a mine operator reduces the air velocity in the belt entry, this could result in less scouring and lower respirable dust concentrations. As the Panel indicated, the operator should implement improved engineering controls whenever possible, or use air from another intake air course.

During the rulemaking process and at each of the public hearings, the Agency solicited comments on the proposal. A commenter supported the proposal. Another commenter agreed with reducing dust concentrations, and stated that the dust concentration should be as low as feasible.

Another commenter requested that MSHA not include this proposal in the final rule because there is no scientific justification for reducing the intake content of air that does not contain quartz in excess of five percent. The commenter stated that there is no connection between the designated area in the belt area and areas on the working section where there would be a reduced standard.

Another commenter stated that the proposal was unnecessary because respirable dust samples must still be collected at the affected designated areas or designated occupations. This commenter stated that additional reduction of dust concentrations to less than 1.0 mg/m
3
should not be required unless sample results from the designated area or occupations indicate non-compliance with the existing standard.

The mine ventilation system must provide the necessary air quantity and velocity to dilute and disperse the airborne dust generated in the working section. This requires the intake air ventilating working sections to be sufficiently uncontaminated to maintain compliance with applicable dust standards. MSHA recognizes that permitting air from the belt entry to ventilate working sections increases the quantity of air at the working place. The Agency also recognizes that conveyor belt entries represent a constant and potentially significant dust generating source that can contribute to the respirable dust exposure of all miners on the working section. Consistent with the Panel's recommendation, the final rule is necessary to assure that air from the belt entry does not increase miners' exposure to respirable coal mine dust.

Final §§ 75.350(b)(7) and (b)(8), like the proposal, are new provisions. Final § 75.350(b)(7) requires that the air velocity in the belt entry must be at least 100 feet per minute where this air is used to ventilate working sections. It provides that when requested by the mine operator, the district manager may approve lower velocities in the ventilation plan based on specific mine conditions. Final § 75.350(b)(8) requires that the air velocity in the belt entry must not exceed 1,000 feet per minute. It provides that when requested by the mine operator, the district manager may approve higher velocities in the ventilation plan based on specific mine conditions.

These requirements address Panel Recommendation 13. The Panel recommended minimum and maximum air velocities in belt entries for mines using air from belt entries to ventilate working sections. The Panel recommended a minimum velocity of 100 feet per minute, and a maximum of 1,000 feet per minute in the belt entry, but acknowledged that there are situations where these velocities may be difficult to maintain. For this reason, the Panel recommended allowing the district manager to approve exceptions to the minimum and maximum velocities.

The Panel provided three reasons for requiring a minimum velocity of 100 feet per minute: Improve the response time for fire detection; reduce the possibility of methane layering; and mitigate underground fog formation. The Panel recommended limiting the maximum velocity to 1,000 feet per minute to address physical discomfort to workers when air from the belt entry is used to ventilate working sections. Also, according to the Panel, when air from the belt entry is used to ventilate working sections, increased velocity will result in a greater entrainment of dust particles, resulting in a need to limit the velocity.

The Panel noted that it may be difficult to achieve minimum air velocities in locations outby point-feed regulators, and where the air meets a partial obstruction like an airway constriction at an overcast or undercast. MSHA believes that additional areas where minimum air velocities may be hard to achieve include those areas where entry height is exceptionally high.

Consistent with the Panel's recommendation, the final rule provides that the district manager may approve exceptions to the minimum and maximum velocities in the mine ventilation plan based on specific mine conditions. These exceptions can be approved where reductions to sensor spacing or alert and alarm levels are made to assure the fire detection capabilities of the AMS are maintained. In developing their ventilation plans, mine operators should use the criteria in NIOSH research (RI 9380, 1991) to determine appropriate alert and alarm levels.

A commenter supported the proposal but suggested that exceptions to the minimum and maximum velocities be approved at MSHA headquarters. For the reasons outlined above, MSHA believes that the district manager is in the most appropriate position to make a judgment on this issue.

Another commenter objected to any limits on the velocity of air in the belt entry. That commenter stated that velocities greater than 1,000 feet per minute may be necessary in gassy mines. However, the commenter did recognize that the proposal allowed the district manager to approve higher velocities in specific situations.

Consistent with the Panel recommendation, MSHA believes establishing limits on velocity in the final rule, with the district manager being able to approve exceptions to the limits, is justified for mines using air from the belt entry to ventilate working sections.

Final § 75.350(d)(1), like the proposal, revises the existing standard. It requires that the air current that will pass through the point-feed regulator must be monitored for carbon monoxide or smoke at a point within 50 feet upwind of the point-feed regulator. It also requires that a second point must be monitored 1,000 feet upwind of the point-feed regulator, unless the mine operator requests a lesser distance to be approved by the district manager in the mine ventilation plan based on mine-specific conditions.

The final rule addresses Panel Recommendation 16. The Panel recommended that mines using air from the belt entry to ventilate working sections install, where possible, a second carbon monoxide sensor in the primary escapeway 1,000 feet upwind of the sensor required by the existing standard. MSHA believes that this final rule will expedite escape in the case of a fire or other emergency, since a fire in the primary escapeway may be detected before contaminants inundate the alternate escapeway. This early-warning will provide the AMS operator and responsible person with additional time

to assess potential hazards and determine necessary corrective actions.

MSHA is aware that point-feeding air from the primary escapeway to the belt entry designated as the alternate escapeway can present significant problems for miners who must evacuate the mine due to a fire in the primary escapeway. The second sensor would monitor the primary escapeway for fire. Agency experience suggests this is possible in most cases since point-feed regulators are typically near the mouth of development panels or deep into the mains of the mine. However, the final rule allows operators to request that a lesser distance be approved by the district manager in the mine ventilation plan based on mine-specific conditions, for example, near intake shafts where the distance from the point-feed regulator to the bottom of the shaft may be less than 1,000 feet.

A commenter suggested that similar protection should be required for locations where air is introduced from a shaft or slope into the belt air course (injection point). MSHA does not consider these locations to be point-feed regulators. This commenter's suggestion is beyond the scope of the Panel's recommendation and this rulemaking.

Other commenters stated a sensor installed 1,000 feet out by a point-feed regulator did not provide additional protection and was not necessary. In its report, the Panel recommended installation of this sensor to provide earlier warning of a fire in the intake, and to eliminate possible false alarms. MSHA agrees that these sensors can provide early detection of a fire in the intake, and enhance miner safety.

Proposed § 75.350(d)(7) is not included in the final rule. The proposal would have required that where point-feeding air from a primary escapeway to a belt entry designated as an alternate escapeway, point-feed regulators be equipped with a means to remotely close the regulator. It would have also required that the AMS operator, after consultation with the responsible person and section foreman, be capable of performing this function from the designated surface location. The final rule does not include a requirement for providing a means for closing or re-opening the regulator from the designated surface location.

The proposed rule addressed Panel Recommendation 16. The Panel recommended that, when carbon monoxide sensors detect alert or alarm levels of carbon monoxide and the mine has designated the belt entry as the alternate escapeway, the AMS operator should have the ability and authority to remotely close or open the point-feed regulator after consulting with the responsible person designated by the mine operator to take charge during mine emergencies.

Several commenters indicated that closure of a point-feed regulator would be a major ventilation change. The commenters noted that the change can reduce the intake air quantity on a working section and create hazardous conditions. These commenters were opposed to requiring a means to remotely close or re-open point-feed regulators due to the possibility of inadvertent closure, which could create explosive atmospheres in working places. A commenter stated that these types of air changes should be performed only by trained mine rescue personnel with MSHA approval, and only after the mine was evacuated.

MSHA agrees that closure of a regulator can reduce the intake air quantity on a working section, and may cause sudden and rapid increases in methane concentrations on the working sections. Closing regulators without properly notifying sections may lead to an ignition in the face area, fires and explosions.

After a review of the comments, the Agency has determined, based on its experience with making ventilation changes during emergencies that the existing requirement that point-feed regulators be provided with a means to close the regulator from the intake and belt air courses within the mine is the most appropriate method for making this ventilation change during a mine emergency. This allows an on-site evaluation of the circumstances surrounding the emergency, and prevents an inadvertent or unauthorized closure from the surface.

Section 75.351(b)—Designated Surface Location and AMS Operator

Final § 75.351(b)(2), like the proposal, revises the existing standard. It requires that the AMS operator must have as a primary duty the responsibility to monitor the malfunction, alert and alarm signals of the AMS, and to notify appropriate personnel of these signals. In response to comments and to clarify the Agency's intent, the final rule is changed from the proposal to include a requirement that, in the event of an emergency, the sole responsibility of the AMS operator shall be to respond to the emergency.

The final rule addresses Panel Recommendation 12. The Panel indicated that the highest priority of the AMS operator should be monitoring and responding to system signals. Under the final rule, the AMS operator is not prohibited from performing additional duties as long as the alert, alarm and malfunction signals can be seen or heard, and a timely response can be initiated. The final rule will assure that the AMS operator's other duties do not adversely affect the primary responsibility of responding to AMS signals.

Commenters supported this provision, but were concerned that AMS operators may have other duties not directly related to safety and health. These commenters also stated that AMS operators should not have other responsibilities during an emergency.

In response to these comments, the final rule adds a requirement clarifying that, in the event of an emergency, the sole responsibility of the AMS operator shall be to respond to the emergency. This will assure that an AMS operator is performing those duties essential to the safety and health of miners during an emergency.

Section 75.351(e)—Location of Sensors—Belt Air Course

Final § 75.351(e)(1), like the proposal, revises and renumbers existing § 75.351(e). Under final § 75.351(e)(1), the term “approved” has been added to clarify that all sensors used for fire detection must be approved under existing § 75.1103-2. In addition, the term “smoke sensors” has been deleted. The requirements for smoke sensors are addressed in final § 75.351(e)(2).

Final §§ 75.351(e)(1)(i) and (ii), like the proposal, renumber existing §§ 75.351(e)(1) and (2). Final § 75.351(e)(ii) makes nonsubstantive changes for clarity and ease of reading. No other changes have been made to these provisions.

Final § 75.351(e)(1)(iii), like the proposal, renumbers and revises existing § 75.351(e)(3). It requires approved sensors at intervals not to exceed 1,000-feet along each belt entry; however, in areas along each belt entry where air velocities are between 50 and 100 feet per minute, spacing of sensors must not exceed 500 feet. It also retains the existing requirement that in areas along each belt entry where air velocities are less than 50 feet per minute, the sensor spacing must not exceed 350 feet.

The requirement for a minimum velocity in the belt entry is based on the time it would take for carbon monoxide or smoke to travel from a fire to the sensors. When the air velocity is reduced, the time required to carry carbon monoxide gas or smoke to a sensor is increased. Therefore, the distance between sensors needs to be reduced to maintain the same level of early-warning fire detection.

The 500-foot spacing interval for velocities between 50 and 100 fpm, like the proposal, is a new requirement. MSHA calculated the spacing requirement, which provides a 10-minute maximum travel time for gases between sensors. The 500-foot spacing requirement with a velocity between 50 and 100 fpm is equivalent to the 1,000-foot sensor spacing with 100 fpm air velocity. The time for carbon monoxide gas or smoke to travel from a fire to a downwind sensor is no greater than 10 minutes.

A commenter supported the provision, but stated that the effectiveness of the reduced sensor spacing should be demonstrated in the mine. The Agency has extensive experience and data on the air flow characteristics in belt conveyor entries, including tracer gas tests and ventilation surveys. That experience and data show that reduced sensor spacing requirements are effective for detecting carbon monoxide produced by a fire. MSHA believes further testing at each mine site is not necessary.

Final § 75.351(e)(1)(iv), like the proposal, renumbers and revises existing § 75.351(e)(4). It requires approved sensors not to be more than 100 feet downwind of each belt drive unit, each tailpiece transfer point, and each belt take-up. In addition, if the belt drive, tailpiece, and/or take-up for a single transfer point are installed together in the same air course, and the distance between the units is less than 100 feet, they may be monitored with one sensor downwind of the last component. Also, if the distance between the units exceeds 100 feet, additional sensors are required downwind of each belt drive unit, each tailpiece transfer point, and each belt take-up.

A commenter supported the proposal, and added that the sensors should also be visually examined during the preshift examination. Existing standards require these sensors to be visually examined at least once each shift because they are installed to comply with § 75.350(b). The examination can be made during either the preshift or on-shift examination.

Another commenter suggested the provision should apply only to mines using air from the belt entry to ventilate the working section. While the final rule applies only to mines using air from the belt entry, the same requirement is included in final § 75.1103-4(a)(1)(i) and applies to all mines using belt haulage. Belt drives, tail pieces, transfer points and take-up units are potential fire sources. The additional sensors will assure earlier detection of a fire.

Final § 75.351(e)(1)(v), like the proposal, renumbers existing § 75.351(e)(5). No other changes have been made.

Final § 75.351(e)(2), like the proposal, is a new provision. It requires smoke sensors to be installed to monitor the belt entry under final § 75.350(b). The final rule addresses Panel Recommendation 9 that MSHA require the use of smoke sensors in addition to carbon monoxide sensors in mines using air from a belt entry to ventilate working sections at three specific locations.

When smoke sensors become available, mine operators must comply with the requirements for installing both smoke and carbon monoxide sensors in those mines that use air from the belt entry to ventilate the working section.

Final § 75.351(e)(2)(i), like the proposal, requires a smoke sensor to be installed at or near the working section belt tailpiece in the air stream ventilating the belt entry. In addition, in longwall mining systems, the sensor must be located upwind in the belt entry at a distance no greater than 150 feet from the mixing point where intake air is mixed with the belt air at or near the tailpiece.

A smoke sensor at or near the section tailpiece will warn miners of smoke prior to it contaminating the working section. This allows more time for miners to evacuate the section with less exposure to potentially toxic fumes.

Final § 75.351(e)(2)(ii), like the proposal, requires a smoke sensor to be installed not more than 100 feet downwind of each belt drive unit, each tailpiece, transfer point, and each belt take-up. In addition, if the belt drive, tailpiece, and take-up for a single transfer point are installed together in the same air course, and the distance between the units is less than 100 feet, they may be monitored with one sensor located downwind of the last component. Also, if the distance between the units exceeds 100 feet, additional sensors are required downwind of each belt drive unit, each tailpiece, transfer point, and each belt take-up. These components are potential fire sources. The additional sensors will assure earlier detection of a fire.

Based upon the Panel's report and Agency experience and data, MSHA believes that smoke sensors provide additional protection at the belt drive, which can be a major source of frictional heating from belt slippage. This can often produce significant smoke with little carbon monoxide, and can result in a belt fire.

Final § 75.351(e)(2)(iii), like the proposal, requires smoke sensors to be installed at intervals not to exceed 3,000 feet along each belt entry. The Agency is not requiring a smoke sensor to be installed near the midpoint of the belt line as recommended by the Panel. The midpoint of the belt line will change as the section advances or retreats, which would require splicing of the data line when relocating the smoke sensor. The frequent splicing of the data lines could allow moisture and dust to enter the line and may result in communication failures. Miners have indicated that frequent splicing of the cable containing the AMS data line can adversely affect the reliability of a system.

MSHA believes the requirement for smoke sensors along the belt entry is responsive to the Panel's goal for more effective and reliable early detection of conveyor belt fires. The final rule would avoid problems associated with frequent relocation of the smoke sensor. The 3,000-foot spacing requirement provides longer belts to be monitored at additional locations.

Final § 75.351(e)(2)(iv), like the proposal, provides that the smoke sensor requirements of this final rule are effective one year after the Secretary has determined that a smoke sensor is available to reliably detect fire in underground coal mines. This final rule is consistent with the Panel's suggested delayed effective date for the smoke sensor requirement, to permit in-mine evaluation of the sensors. The Panel noted reliability and maintenance issues with the use of smoke sensors in underground coal mines, especially along conveyor belt entries.

NIOSH is currently testing smoke sensors used in other harsh industrial environments for their potential use in underground mines. NIOSH is evaluating these sensors to assess reliability and service life.

To allow for further in-mine evaluation and approval of smoke sensors, the Secretary's determination will be made after a nationally recognized testing laboratory formally lists a smoke sensor specifically tested for use in underground coal mines. In making the determination regarding the availability of smoke sensors, the Secretary will also consider whether additional rulemaking is appropriate. MSHA will notify mine operators of the availability of smoke sensors by publishing a notice in the
Federal Register
.

The final rule is based on the Secretary's authority under existing § 75.1103-2 to approve nationally recognized testing laboratories. The Secretary has approved two such laboratories for listing or approving components of automatic fire sensors.

They are Underwriters Laboratories (UL) and Factory Mutual (FM). These laboratories establish standards for manufacturers of components of automatic fire sensors used in underground coal mines.

MSHA has recommended a change to a commercial standard for smoke detectors to be applied to address sensor reliability in underground coal mines. In December 2002, the Agency asked UL to add a category for smoke sensors for underground coal mines to their commercial performance standard for smoke sensors (UL268). In MSHA's request to UL, the Agency asked that the performance standard for smoke sensors include tests for sensitivity to smoldering and flaming coal. UL has formed a new working group, which includes an MSHA representative, to study false alarms caused by coal mine dust and other airborne particulates.

MSHA's Program Policy Manual (Manual) provides additional guidance on the requirements of § 75.1103-2. The Manual states that fire sensors used in belt entries must be listed or approved by UL or FM. New or unique devices to be used as fire sensors that are not yet listed by UL or FM and which may meet the requirements of these standards can be submitted to MSHA's Office of Technical Support for a determination of whether they are acceptable to use.

Once a laboratory has formally listed a smoke sensor for use in underground coal mines, the Secretary will evaluate the sensor to determine if it will reliably detect a fire in the underground environment. MSHA believes that, once the smoke sensors for underground coal mines are available, one year will allow mine operators using air from the belt entry to ventilate working sections sufficient time to purchase and install the sensors. The Agency intends to keep the mining community informed of ongoing activities with respect to the development of smoke sensors for underground coal mines.

Some commenters supported the proposal, but stated that smoke sensors are currently available. They added that upon approval, installation should be immediate and not be delayed by allowing one year for compliance. Other commenters stated that smoke detectors should not be required until they are reliable and commercially available.

NIOSH has not found smoke sensors to be reliable for fire detection in the mine environment. Research continues to identify technology that can be adapted to the mine environment, and MSHA intends to require smoke sensors when available. The Agency believes that one year is an appropriate time period for manuf

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-30639. Public record. Not legal advice.