Federal Register: April 2, 2004 (Volume 69, Number 64)

DOCID: FR Doc 04-6768

SUBJECT CATEGORY:

Underground Coal Mine Ventilation--Safety Standards for the Use of a Belt Entry as an Intake Air Course To Ventilate Working Sections and Areas Where Mechanized Mining Equipment Is Being Installed or Removed

DATES: This standard is effective June 1, 2004, with the exception of Sec. Sec. 75.351(e)(3) and 75.351(r) which are effective August 2, 2004.

DOCUMENT SUMMARY:

The final rule will allow the use of intake air passing through belt air courses (belt air) to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines. The use of belt air, under the conditions set forth in the final rule, will maintain the level of safety, and therefore not reduce protections, currently afforded miners in underground mines while implementing advances in mining technology. The final rule amends existing safety standards for ventilation of underground coal mines. This final rule also amends other standards.

SUMMARY:

Labor Department, Mine Safety and Health Administration,

SUPPLEMENTAL INFORMATION

Outline of Preamble

This outline will help interested parties find information in this preamble more quickly.
I. Background

II. Discussion of Final Rule

A. General Discussion30 CFR, Part 75, Subpart DVentilation.

1. General comments

a. Respirable dust

b. Replace pointtype type heat sensors with AMS technology in all underground coal mines, not just those using belt air to ventilate working sections

c. Batterybackup of AMS

d. Require use of both carbon monoxide and smoke sensors

e. District manager discretion

f. Use of 1989 BEVR Report and 1992 Advisory Committee Report

g. Slippage switches

2. Comments comparing the differences between the final rule's provisions and requirements found in either granted petitions or in a preCoal Act mine's approved ventilation plan

a. Protections under the final rule are at least equal to those contained in granted belt air petitions for modification (granted petitions) and, therefore, provide the same level or an increased level of protection currently afforded miners

b. The role of atmospheric monitoring systems in granted belt air petitions and in the final belt air rule

c. Granted belt air petition requirements not included as provisions in the final belt air rule
(1) Granted petition requirement: Sensors shall be installed ``* * * as near to the roof as feasible (efforts toward monitoring within 12 inches of the roof) * * *'' or, sensors shall be installed ``* * * in the upper third of the entry * * *''
(2) Granted petition requirement: Tables are used to determine alert and alarm levels in many granted petitions
(3) Granted petition requirement: The method used to determine ambient level
(4) Granted petition requirement: Consideration of multiple entries is specifically addressed
(5) Granted petition requirement: Requirement for implementation of dieseldiscriminating sensors
(6) Granted petition requirement: Requirement for notification of miners of alert signals
(7) Granted petition requirement: Requirement for automatic activation of section alarm for sensors on panel; sensors 4,000 feet outby during initial development
(8) Granted petition requirement: Mine phones are required to be located at intervals not to exceed 2,000 to 2,500 feet when mine personnel patrol and monitor the belt on system malfunctions (9) Granted petition requirement: Hand monitoring for products of combustion only permitted for a short period of time
(10) Granted petition requirements: Pressure differentials maintained from escapeway to the belt air course when practicable; limit the pressure drop to lowest attainable level to escapeway from the belt when not feasible; and limiting total airflow to 50 percent of the total section intake
(11) Granted petition requirement: ``Stopping'' construction specified
(12) Granted petition requirement: Section alarms can be seen and heard
(13) Granted petition requirements: ``Wallofwater'' fire suppression system required at all belt drives; actuation of deluge system causes section alarms activation
(14) Granted petition requirement: Smoke sensor technology study conducted
(15) Granted petition requirement: Velocity Caps
(16) Granted petition requirement: Phone; phone lines in intake (primary) escapeway
(17) Granted petition requirement: Maintenance of belt entries (18) Granted petition requirement: Flameresistant conveyor belting
(19) Granted petition requirement: Location to measure velocity in the belt conveyor entry
(20) Granted petition requirement: Miner training
(21) Granted petition requirement: Prior MSHA inspection of AMS before use in belt air mine

d. The effect of the final rule on preCoal Act mines that use belt air to ventilate working sections
(1) Mine ventilation plan: Use of timedelays, visual alert signal, audible alarm signal required at the surface location (2) Mine ventilation plan: Alert and alarm levels of 4 and 8 ppm CO; respectively
(3) Mine ventilation plan: Miners withdrawn on alert to a safe location where communications are available
(4) Mine ventilation plan: Section alarm signals on deluge system activations
(5) Mine ventilation plan: AMS MalfunctionPhones located at belt drives; midpoint of development section
(6) Mine ventilation plan: Requires administrative controls for welding, cutting, or other known sources of CO
(7) Mine ventilation plan: Point feeding prohibited from primary escapeway to belt; Stopping maintenance
(8) Mine ventilation plan: Stoppings
(9) Mine ventilation plan: Travelway provided and maintained on tailgate of longwall sections; Intake air split

B. SectionbySection Discussion

Section 75.301 Definitions

Section 75.350 Belt air course ventilation

Section 75.351 Atmospheric monitoring systems

Section 75.352 Actions in response to AMS malfunction, alert, or alarm signals

Section 75.371 Mine ventilation plan, contents

Section 75.372 Mine ventilation map

Section 75.380(g) Escapeway; bituminous and lignite mines III. Paperwork Reduction Act
IV. Executive Order 12866 (Regulatory Planning and Review) and Regulatory Flexibility Act

A. PopulationatRisk

B. Benefits

C. Compliance Costs

D. Safety Benefits and Other Economic Impacts

E. Feasibility

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

1. Factual Basis for Certification

V. Other Regulatory Analyses

A. Unfunded Mandates Reform Act of 1995 and Executive Order 12875 (Enhancing the Intergovernmental Partnership)
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B. Executive Order 13132 (Federalism)

C. Executive Order 13045 (Health and Safety Effect on Children)

D. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)

E. Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use)

H. Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking)
VI. Petitions for Modification

I. Background

The final rule revises Sec. Sec. 75.350, 75.351, and 75.352 of our existing safety standards for underground coal mines. The rule also amends Sec. Sec. 75.301, 75.371, 75.372, and 75.380 of our existing safety standards for underground coal mines. These changes provide protection for miners when air is coursed through the belt entry to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines (setup or removal areas). Effective ventilation and the quick identification of potential hazards are needed to provide a safe environment for miners. New technology has proven safe and effective in quickly and reliably detecting the products of combustion and providing early warning to miners. The use of belt air under this final rule will increase protection compared to mines that use only pointtype heat sensors by quickly detecting products of combustion in the belt entry at an early stage of fire development and by rapidly providing warning. With this final rule in place, mine operators will no longer be required to submit petitions for modification of existing standards in order to use belt air. These changes are in accordance with requirements in section 101 of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 811.

The Federal Coal Mine Health and Safety Act of 1969 (the Coal Act), and the Mine Act that superseded it, provided that entries used as intake and return air courses be separated from belt haulage entries, and that air coursed through belt entries be prohibited from ventilating active working places. However, existing mines (preCoal Act mines) using belt air were permitted to continue to use belt air, with approval of the MSHA district manager (30 CFR 75.350 and formerly 30 CFR 75.326). This approach of isolating the belt entry was directed at hazards associated with the potential for undetected fires and increased dust levels in conveyor belt entries. The approach was implemented through mandatory safety standard, 30 CFR 75.326. Technology has evolved since the passage of the Coal Act in 1969. Advances in computeroperated atmospheric monitoring systems (AMS) have led to acceptance of AMSs as an effective tool to monitor conditions in mine entries and detect the products of combustion at an early stage of fire development. This final rule establishes the requirements for integrating AMSs into a comprehensive and safe approach to use belt air for ventilation of working sections or setup or removal areas that maintains or increases protection for miners.

MSHA first published a proposed rule to revise the safety standards for ventilation of underground coal mines (including original 30 CFR 75.326) in the Federal Register January 27, 1988 (53 FR 2382). As part of that proposed rule, MSHA proposed to allow air coursed through the belt entry to ventilate working places when mine operators have installed carbon monoxide (CO) sensors in the belt entry.

In response to public comments submitted to the Agency on the January 27, 1988 proposed rule, we held six public hearings in June 1988, with the rulemaking record closing in September 1988. Based on public comments received during this period, MSHA's Assistant Secretary called for a thorough review in March 1989 of safety factors associated with the use of air in the belt entry in the working places. MSHA completed this review and announced in an August 25, 1989 Notice in the Federal Register (54 FR 35356), the availability of the Belt Entry Ventilation Review (BEVR) Report. The report concluded that ``* * * directing belt entry air to the face can be at least as safe as other ventilation methods provided carbon monoxide monitors or smoke detectors are installed in the belt entry.''

After the BEVR report was issued, we reopened the ventilation rulemaking record and held a seventh public hearing in April 1990, to receive public comment on issues raised in the report. The reopened ventilation rulemaking record for the 1988 proposed rule closed in May 1990.

Comments received during and after the seventh public hearing expressed divergent views on the recommendations of the BEVR Committee. Commenters representing industry and academia concluded generally that the use of air in the belt entry provides positive ventilation and reduces the possibility of a methane (CH4) buildup in the belt entry. Commenters from labor, on the other hand, maintained that the use of air in the belt entry reduces safety due to increased exposure to products of combustion and greater dust levels.

Due to these divergent views, when the ventilation rule for underground coal mines was finalized in 1992, it did not include provisions that would have allowed mine operators to use belt air to provide intake air to working places. MSHA's existing standards do not allow this practice except as approved on a minespecific basis through the petition for modification process (30 U.S.C. 811 (c)) or when approved by the MSHA district manager for mines opened on or before March 30, 1970 (preCoal Act mines). The final ventilation rule retained the requirements of thenexisting 30 CFR 75.326 requiring, in part, that entries used as intake and return air courses be separated from belt haulage entries and prohibiting air coursed through belt entries from ventilating active working places.

MSHA decided that the use of belt air to ventilate working places should continue as an independent rulemaking effort. As part of this effort, the Secretary of Labor appointed an Advisory Committee in January 1992 and charged it to make recommendations concerning the conditions under which air in the belt entry could be safely used in the face areas of underground coal mines. This committee was designated as the Department of Labor's Advisory Committee on the Use of Air in the Belt Entry to Ventilate the Production (Face) Areas of Underground Coal Mines and Related Provisions (Advisory Committee). The Advisory Committee held six public meetings over a sixmonth period. After reviewing an extensive amount of material, the Advisory Committee concluded in a final report that air in the belt entry could be safely used to ventilate working places in underground coal mines, provided certain conditions are met.

The Advisory Committee made twelve recommendations to support this conclusion. The Advisory Committee submitted its report to the Secretary of Labor in November 1992. We published a December 2, 1992 Notice (57 FR 57078) in the Federal Register announcing the availability of the Advisory Committee's final report and stated that we would review its recommendations.

When the Agency published its final revised ventilation rule in March 1996, several commenters urged MSHA to
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proceed at that time on the issue of belt air. However, belt air was not addressed in that rulemaking. The issue was placed on MSHA's rulemaking agenda for the development of a separate proposed rule (61 FR 9765).

On January 27, 2003, MSHA published a notice of proposed rulemaking (68 FR 3936) to modify existing ventilation standards to allow the use of belt air, once certain controls were implemented in mines with three or more entries. There were five hearings on this proposed rule: in Grand Junction, Colorado; Charleston, West Virginia; Washington, Pennsylvania; Birmingham, Alabama; and Lexington, Kentucky. The post hearing comment period closed June 30, 2003.
II. Discussion of Final Rule

A. General Discussion30 CFR, Part 75, Subpart DVentilation

Existing Sec. 75.350 (Air courses and belt haulage entries) requires that entries used as intake and return air courses be separated from belt haulage entries and prohibits air coursed through belt entries from ventilating working places. At the time the Coal Act was passed, there was concern with the increased use of conveyor belts and the potential for propagation of fires along these belts. Room and pillar mining was the predominant form of coal mining and computer operated monitoring systems, such as the AMS, did not exist. Modern technology now allows for the use of belt air to ventilate working sections and setup or removal areas due to the development of sensitive atmospheric monitoring systems that utilize CO sensors that can readily detect small increases in the products of combustion. As AMSs have become more sophisticated, they have employed computer technology to transmit environmental measurements from remote locations to attended mine locations. These systems provide signals, store and catalogue data, and provide reports.

The final rule continues to allow the existing method of ventilation where belt air is coursed directly to a return air course or to the surface and not onto either the working sections or setup or removal areas. However, it also permits, with additional requirements to ensure miner safety, the use of belt air to ventilate the working sections and setup or removal areas.

Prior to this final rule, a mine operator would file a petition for modification to seek approval to use belt air to ventilate working places in the mine operator's underground coal mine. MSHA grants approval when the petitioned for change provides an alternate method that guarantees no less than the same measure of protection afforded by the existing standard, or when the application of the existing standard will result in a diminution of protection (30 U.S.C. 811(c)). To date, we have granted approximately 90 such petitions. However, a few of these have been revoked because the mine chose not to implement the petition or the mine was closed. Nine petitions are being processed as of the date of this notice.

Under existing Sec. 75.350Air courses and belt haulage entries, mines opened on or before March 30, 1970, may use belt air to ventilate working places when it is determined that this air is needed to provide adequate ventilation. Currently, preCoal Act mines opened before 1970 are ventilated in this manner. In each of these cases, we require the mine operator, through the mine ventilation plan, to continue to provide at least the same level of protection afforded to miners in petitions that we have granted. Under this final rule, the preCoal Act mines are not exempted and, therefore, must meet the new standards. This action will effectively increase protections in these mines.

MSHA's proposed belt air rule (68 FR 3936, January 27, 2003) contains further discussion of: MSHA's experience with AMSs, including belt air petitions; a discussion of reportable and nonreportable belt fires; and a section discussing Summary and Considerations of the Advisory Committee Report, Recent Belt Air Petitions, and the BEVR Report. The proposed rule can be located at http://www.msha.gov/REGSPROP.HTM. MSHA refers the reader to this discussion for additional
information.

1. General Comments

Many comments were received during the public hearings on the belt air proposed rule which were not directly related to specific proposed provisions. While comments were directed at enhancing the health and safety of miners, they were either beyond the scope of the proposed rule or are addressed by existing standards.

a. Respirable dust. Concerns with respirable dust levels for shuttle car and ram car operators working just inby the section loading point were expressed by a number of commenters. This issue is beyond the scope of this rulemaking. The mine operator is still required to meet air quality requirements, including respirable dust (30 CFR part 70, subpart BDust Standards). Operators may need to implement additional dust controls in outby areas to use belt air and maintain compliance with existing standards.

b. Replace pointtype heat sensors with AMS technology in all underground coal mines, not just those using belt air to ventilate working sections. It was suggested by a number of commenters that AMS technology be required in the place of pointtype heat sensors (PTHS) for fire detection in belt lines in all underground coal mines. The Agency encourages the implementation of AMS technology for fire detection because the Agency believes it to be superior to PTHS systems. However applying AMS technology to all underground coal mines is beyond the scope of this rulemaking on belt air and is, therefore, not addressed in this final rule.

c. Battery backup of AMS. A number of comments were received regarding a petition requirement for a 4hour battery backup for the AMS. The typical language from the petitions is as follows: ``The low level carbon monoxide system shall be capable of giving warning of a fire for a minimum of 4 hours after the source of power to the belt is removed, except when the power is removed during a fan stoppage or the belt haulageway is examined as provided in 30 CFR 75.11044(e)(1) and (2).'' This is not a requirement, as interpreted by the commenters, for a battery backup for the AMS. There are no existing granted petitions known to include such a requirement for a battery backup for the AMS.

This language does not require the installation of an uninterrupted power supply (UPS) for the AMS. If power is removed from the belt, the AMS will function properly if powered from a different electrical circuit than the belt. If, however, the power source to the surface computer is interrupted, the AMS will not function. Without a UPS to power the system, the mine operator would be required to begin patrolling the belt entries, as required by Sec. 75.352(e)(3).

The battery backup requirement is not included in the National Fire Code No. 72A (1967). Although it is not specifically required by this rule, mine operators can consider installation of a UPS to assure system operation in the event of a power interruption.

In addition, if the AMS is used as a communication system under Sec. 75.351(r) of this final rule, then under Sec. 75.1600(c)(2) the system must be provided with means to permit continued communication in event the mine electric power fails or is cut off. The most likely method of compliance is installation of a UPS for the AMS.

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d. Require use of both carbon monoxide and smoke sensors. Some commenters suggested that the standard should require the use of both ``carbon monoxide and smoke'' detection as included in the Advisory Committee recommendations, rather than the language in the proposed rule allowing ``carbon monoxide or smoke'' detectors. MSHA did not require both for several reasons. First, researchers at the U.S. Bureau of Mines (RI 9586 and RI 9311) have stated that some smoke sensors are subject to adverse effects of dust and humidity. MSHA is not aware of a commerciallyavailable smoke sensor not subject to dustrelated interference that meets the requirements of Sec. 75.11032 for use in underground coal mines. Second, CO sensors have proven to be protective for smoldering and flaming coaltype fires. NIOSH research (RI 9622) indicated a detection level of 5 ppm CO was equivalent to the detection level of smoke sensors. This comparison has led the Agency to conclude that the maximum alert level of 5 ppm carbon monoxide will provide at least the same protection to miners as a smoke sensor. For these reasons we have retained the proposed rule language, but we would encourage future research as well as implementation of new technology once it becomes available.

e. District manager discretion. Many commenters were concerned with the level of discretion that the proposed rule would give to district managers. District managers currently are responsible for the biannual reviews of the mine ventilation plans, quarterly safety and health inspections, and other inspection and investigation activities under the Mine Act. This final rule adds ventilation plan requirements that will be reviewed as part of the plan approval process. This final rule provides flexibility for mine operators to tailor ventilation plans to minespecific conditions, and gives the district manager discretion to approve or disapprove these plans, based on those mine conditions. Such conditions could include: establishment of ambient CO levels; lower CO alert and alarm levels; implementation of other technology, such as DDS in areas of the mine where dieselpowered equipment is used; or hydrogeninsensitive sensors used to monitor battery charging stations. MSHA believes this discretion is necessary to assure that protective, minespecific ventilation plans are developed and implemented.

f. Use of 1989 BEVR Report and 1992 Advisory Committee Report. Many of the same commenters also strongly opposed MSHA's reference to the 1989 BEVR Report in the preamble of the proposed rule. They repeatedly noted NIOSH's opposition to the conclusions of that report as a basis for their objections. MSHA included the BEVR Report in the preamble of the proposed rule for the sake of a thorough review of existing documentation on the use of belt air. We relied upon the Advisory Committee Report and our extensive experience with granted petitions to write the proposed rule. It is important to note that NIOSH, in comments to the proposed rule, states that the use of belt air may have a positive effect on reducing dust levels in the face area. In addition, NIOSH states ``The development of improved atmospheric monitoring systems with fewer failures and false alarms has addressed previous reliability concerns.''

These same commenters also testified that they never fully endorsed the recommendations of the Advisory Committee Report and perceive Agency inclusion or exclusion of various recommendations as being arbitrary and more dependent upon what ``fits [MSHA's] current rulemaking and enforcement scheme.'' As discussed in the proposed rule, most recommendations of the Advisory Committee were included in the proposed rule and are retained in the provisions of the final rule. In cases where a recommendation was not included, extensive discussion was provided in the proposed rule. In addition, analyses in previous sections of this preamble indicate the differences found between the beltair related requirements of granted petitions and provisions of this final rule, and the ventilation plan of a preCoal Act mine and provisions of this final rule do not reduce protections afforded to miners.

In addition, commenters have stated that ``the Agency gives no consideration to the protections miners and their representatives have been able to attain at the mine sites through the 101(c) petition process.'' They continue that ``the recommendations of the Advisory Committee coupled with language currently used in these petitions should have been the basis for MSHA's writing of this proposed rule.'' MSHA used all relevant information available to draft the proposed safety standard. MSHA has painstakingly evaluated all evidence in the record. Numerous changes have been included in the final rule that were not included in the proposed rule based on this analysis of, and response to, public comments. These changes will be discussed in detail in the sectionbysection discussion. However, the final rule now provides for a maximum allowable air velocity in the belt entry, notification and withdrawal of personnel on working sections to a safe location if two consecutive sensors signal in the alert mode, installation of lifelines in return entries when used as alternate escapeways, and a 50% limit on intake air provided by the belt air course. Many of these changes will increase miner safety and in no case will the changes reduce the current level of protections afforded miners.

g. Slippage switches. Finally, while neither the proposed rule nor any granted petition included a requirement to monitor slippage switches, the Advisory Committee recommended the integration of slippage switches that detect belt slippage into the earlywarning fire detection system. If this was not feasible, the Advisory Committee recommended that the switches be visually examined each production shift. MSHA did not propose a provision on slippage switches but did solicit comments on this issue in the proposed rule. Only a few commenters submitted information on this issue. They stated that monitoring slippage switches would be inexpensive and should be required by this final rule. Such monitoring would indicate if the belt drive would be shut down in case of slippage. Another commenter was not certain whether it was contemplated that a belt slippage would trigger an alert or alarm. MSHA believes that the monitoring of slippage switches provides little relevant information, since the belt is shut down if slippage is detected. Therefore, no such requirement is added to the final rule.
2. Comments Comparing the Differences Between the Final Rule's Provisions and Requirements Found in Either Granted Petitions or in a PreCoal Act Mine's Approved Ventilation Plan

The following discussion reviews comments that were received during this rulemaking that address the level of protection afforded by the final rule in comparison to levels of protection provided by granted petition requirements or ventilation plan requirements of a preCoal Act mine. The areas discussed are:

b. The role of atmospheric monitoring systems in granted belt air petitions and in the final belt air rule;

c. Granted belt air petition requirements not included as provisions in the final belt air rule; and

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d. The effect of the final belt air rule on preCoal Act mines that use belt air to ventilate working sections.

a. Protections under the final rule are at least equal to those contained in granted belt air petitions for modification (granted petitions) and, therefore, provide the same or an increased level of protection currently afforded miners.

The Agency received a variety of opinions on the need for this rule and its legal basis. Some commenters supported the proposed rule, but suggested existing requirements in granted petitions be grandfathered. The commenters argued that these older requirements, such as the 2,000 foot spacing of sensors, still provide an adequate degree of safety required to use belt air. Their position is that if companies have operated successfully under the existing provisions of a granted petition, there is no need to change these requirements to conform to the new standards. We cannot dispute that some mines have effectively discovered fires using the parameters in older granted petitions. However, research and our experience gained through the petition for modification process (petition process) have shown the final belt air provisions discussed in this preamble are more protective than those requirements in older granted petitions.

In addition, these commenters suggested there will be a significant increased burden on the operators without a significant benefit to be gained by implementing the final rule. It is clear that many older granted petitions do not include significant improvements mandated in the newer petitions granted since 1996. Some older granted petition requirements have been modified by operators who recognized safer operating parameters could be implemented. These mines are operating at a level of safety exceeding the requirements of their respective granted petitions. For example, the petition granted to one mine required alert and alarm levels at 10 and 15 parts per million (ppm), respectively. The mine operator has since reduced the levels to 7 and 12 ppm, respectively, thus increasing the earlywarning fire capability of the AMS. In addition, another mine operator reduced sensor spacing from 2,000 feet to 1,000 feet to reduce the distance that the products of combustion would need to travel before being detected by an AMS sensor. This increased the earlywarning fire detection capability of the AMS.

Other commenters endorsed the concept of promulgating a rule, indicating that the rule was needed because of the high number of petitions filed. This final rule eliminates the need to apply for a petition and the corresponding delay in implementing the use of belt air due to the time required to process the petition.

Different commenters demanded that the Agency withdraw the proposed rule and continue to allow the use of belt air only through the petition process due to many minespecific health and safety concerns. One posthearing commenter stated that the use of belt air at the Jim Walter Resources No. 5 mine (JWR No. 5 mine) was a contributing factor in the explosion that killed 13 miners in September 2001. The commenter asserts that if belt air was not used, at least one or two additional entries would have needed to be developed in order to provide adequate intake air to the section.

MSHA evaluated the comments and determined that it is highly unlikely that additional entries on the longwall development would have prevented the explosions. According to the MSHA investigation report (United States Department of Labor, Mine Safety and Health Administration, Coal Mine Safety and Health. Report of Investigation Fatal Underground Coal Mine Explosions, September 23, 2001No. 5 Mine, Jim Walter Resources, Inc., Brookwood, Tuscaloosa County, AlabamaID No. 0101322.), the initial buildup of methane in the section was due to damaged ventilation controls between the intake and return entries. This damage was caused by a roof fall. This allowed intake air to shortcircuit from the intake track entry into the return between the entries two crosscuts outby the last open crosscut, as noted in the accident investigation report. It was not due to blockage of the intake airway as suggested by the commenter. It is likely that any additional intake entries would have been on the opposite side of the large coal pillar, and the shortcircuiting would have still occurred following the roof fall and damage to the stopping. The first explosion damaged additional ventilation controls which further affected ventilation and created the conditions for the larger second explosion.

The commenter further suggests that the AMS did not work to protect miners in the JRW No. 5 mine. MSHA disagrees. The AMS is designed to detect lowlevel CO concentrations in the event of a fire along the belt air course. It was not designed to withstand the forces of an explosion, and on September 23, 2001, the AMS was damaged by the initial explosion. According to MSHA's accident report, the AMS correctly identified the damage and reported the failure of the system to communicate with its components. The AMS records indicated that alert and alarm signals from other sensors exposed to CO from the explosion were received at the surface location. The system was determined to be operating properly and as designed at the time of the accident.

In addition, the commenter asserts that the use of belt air contributed to a buildup of float coal dust in the belt and return air courses that contributed to the severity of the fatal explosion. The findings in the accident report show that rock dusting was not performed properly to maintain the incombustible content in the mine. This was due to a lack of rock dust application, and not to the use of belt air. Even in the situation where the belt air is coursed in the outby direction, the return and intake entries would still need to be dusted. Both return air courses could be continually dusted while production continued 24 hours a day. As cited in the accident report, ``If the 4 Section had been adequately rockdusted, coal dust would not have contributed to the second explosion and the severity of the accident. The number of fatalities would have been reduced.''

One commenter asserted that the proposed rule violates section 101(a)(9) of the Mine Act because it allegedly reduces the protections afforded miners under minespecific modifications to the application of the existing standard. MSHA disagrees. The final rule does not violate section 101(a)(9) of the 1977 Mine Act because that provision does not call for a comparison of a new standard with minespecific
modifications of the application of an existing standard. Section 101(a)(9) states: ``No mandatory health or safety standard promulgated under this title shall reduce the protection afforded miners by an existing mandatory health or safety standard.'' The plain language of section 101(a)(9) calls only for a comparison of a new standard with an existing standard. The plain language of section 101(a)(9) is corroborated by the statutory placement of section 101(a)(9). Section 101(a)(9) is part of the subsection which pertains to mandatory health and safety standardsi.e., section 101(a)and is one of a series of procedural and substantive requirements which apply to such standards. The placement of section 101(a)(9) indicates that it was intended to require a ``no less protection'' comparison with existing mandatory standards promulgated under section 101(a), and was not intended to require such a comparison with minespecific modifications of the application of
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existing standards granted under section 101(c).

Accordingly, section 101(a)(9) requires that, in promulgating a new rule permitting the use of belt air, the Secretary weigh the net effect on safety under the new rule against the net effect on safety under the existing standard limiting the use of belt air. In promulgating this final rule, MSHA has done just that. MSHA has compared the protections provided by this final rule with the protections afforded by the existing standard and has concluded that, for the reasons set forth below, the final rule does not reduce the protection afforded by the existing standard.

Some commenters argued that this final rule did not address mine specific concerns which were better addressed in petitions for modification. It should be noted that petition language is proposed by mine operators as an (alternative method of achieving the level of safety provided by 30 CFR 75.350). Under the ``alternative method'' of achieving compliance contemplated by Section 811(c), however, the mine operator need only establish that an alternative method achieves the result of the standard and guarantees a net ``equivalence'' in mine safety, taking all effects on mine safety into account.

Although minespecific modifications of the application of a mandatory safety standard, together with any requirements imposed in those modifications, have ``the same effect as a mandatory safety standard'' at the particular mine (30 CFR 44.4(c)), such modifications have never been held to constitute a mandatory safety standard of general application. A mandatory safety standard is generally applicable to all covered mines, whereas a minespecific modification applies to only the one mine for which it was tailored.

In addition, MSHA has determined that other safety and health provisions that may have been included in the granted petition after negotiations between the mine operator and miners' representatives are not germane to the safe use of belt air. Therefore, it is not appropriate, as well as not legally required, to include them in this final rule. For example, two petitions require an intake travelway on a longwall tailgate. An existing standard, Sec. 75.384, already requires travelways. Also, stopping construction is limited in some petitions to solidblock construction. Stopping construction is already addressed by an existing standard, Sec. 75.333.

The Secretary acknowledges that some minespecific modifications of the application of the existing standard contained conditions that, from a safety standpoint, went beyond what was required to achieve net equivalence with the existing standard. While the Secretary encourages the regulated community to institute safety measures that exceed what is required by her mandatory standards, the Secretary has determined that such measures are not required to achieve safety levels deemed adequate under the existing standard and the new rule.

Some commenters contend that onesizedoesnotfitall when it comes to using belt air in a variety of different mines. MSHA agrees. For example, the final rule allows flexibility for determining how the ambient, alert and alarm levels are established. This gives the district manager discretion in approving different levels in the ventilation plans for different mines, tailoring plans to mining conditions in each individual mine.

In general, existing Sec. 75.370Mine ventilation plan; submission and approval, requires that mine operators develop and follow a minespecific ventilation plan that has been approved by the district manager. Section 75.371Mine ventilation plan; contents, sets out the information that must be included in the ventilation plan. Additionally, the district manager is given discretion under Sec. 75.371 to require additional provisions in submitted plans, if they are necessary to protect workers from methane and respirable dust.

b. The role of atmospheric monitoring systems (AMSs) in granted petitions and in the final belt air rule.

The cornerstone for allowing the use of belt air as intake air ventilating working sections and setup or removal areas in either a granted petition or this final rule is the proper installation, operation, maintenance, and examination of an AMS. An AMS provides for earlywarning fire detection along the belt air course using sensors that detect low levels of CO or smoke. Signals from these sensors are transmitted to a designated surface location at the mine so that an AMS operator can notify appropriate personnel so that they can take required actions, depending on the type of signal received. These actions could range from an investigation of a malfunctioning sensor to evacuation of affected miners to a safe location in the mine due to an alarming sensor. Existing Sec. 75.351Atmospheric monitoring system (AMS), establishes performance requirements for these systems used to comply with existing Sec. Sec. 75.323(d)(1)(ii)Return air split alternative, 75.340(a)(1)(ii) and 75.340(a)(2)(ii)Underground electrical installations, or 75.362(f)Onshift examination. As explained in the sectionbysection analysis of this final rule, existing Sec. 75.351 is revised to require the installation and operation of an AMS if the mine operator chooses to use belt air to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines. This requirement increases the level of safety provided miners in that an AMS, when used to comply with the automatic fire sensor requirements referenced in Sec. 75.11034(a)(2), can detect the products of combustion much faster than the morecommon pointtype heat sensors which require a significant level of heat to activate. Some commenters stated that belt air has been successfully used over many years and that only minor issues have developed concerning the AMS. An example was given that false alarms, or alarms that signal nonfire events, have been a problem in the past; but they have been ``addressed.'' The National Institute for Occupational Safety and Health (NIOSH) commented that ``The development of improved atmospheric monitoring systems with fewer failures and false alarms has addressed previous reliability concerns.'' One commenter stated that the AMS has helped to limit the number of belt fires at his mine. The use of modern AMSs helps to minimize alarms due to nonfire related CO production (nuisance alarms) and therefore, increases confidence that the signals reflect potentially hazardous conditions.

Under Sec. 75.351(m) of this final rule, when a demonstrated need exists, such as the use of dieselpowered equipment, that can cause nuisance alert and alarm signals, time delays of up to 3 minutes (180 seconds) may be incorporated into the AMS. These time delays reduce the number of nonfire related CO sensor signals, therefore making the system more reliable by reducing nuisance alert and alarm signals.

In addition, this final rule also reduces alert and alarm levels to 5 and 10 ppm above ambient CO levels, respectively, from higher levels specified in some existing granted petitions, thus increasing protection to miners. These are the maximum alert and alarm levels allowed by this final rule. Lower alert and alarm levels can be required by the district manager if conditions in the mine warrant such a reduction. One such condition would be air quantities sufficient to dilute CO produced by a fire which could delay the early detection of the fire.

All alert and alarm values for particular CO sensors take into account
[[Page 17486]]
the ambient CO level (average concentration in ppm in the air course containing CO sensors) for that area of the mine where the sensors are located. Maximum alert and alarm values will be 5 and 10 ppm above ambient CO levels. For example, with an ambient CO level of 2 ppm, the alert and alarm levels will be 7 and 12 ppm, respectively. For an ambient CO level of 4 ppm, the alert and alarm levels will be 9 and 14 ppm, respectively. Both of these sets of values provide equivalent protection because the alert and alarm signals are provided when the CO concentration in the belt air course rises 5 and 10 ppm above the ambient for that area of the mine, respectively.

Also, the final rule reduces sensor spacing required by some of the older granted petitions from 2,000 feet to 1,000 feet. These additional safety requirements increase the level of fire safety in mines that choose to use belt air to ventilate working sections and setup or removal areas. We believe that there will be a reduction in the number of reportable belt fires and their severity due to the reduced sensor spacing and lowered alert and alarm levels. These provisions will provide increased early warning of the presence of the products of combustion.

Some commenters stated that more regulation is needed to make sure that the AMS is maintained and that miners are trained. They recommended that MSHA review the most stringent granted petition and adopt its training requirements into law. We believe the final rule's maintenance and training provisions are appropriate. This final rule requires the AMS to automatically signal the AMS operator of electrical malfunction of the system. If malfunction signals are received at the surface location, the AMS operator must notify appropriate personnel who have the responsibility to take immediate action to investigate the signals and correct any problems. Furthermore, the final rule requires that personnel must be trained to maintain the system and that the system must be maintained in proper operating condition. Training provisions in this final belt air standard are consistent with existing training requirements in granted petitions. As will be discussed later, it is the Agency's position that current training requirements in part 48 are sufficient to train miners and that the emergency drill requirements in existing standards are sufficient to give miners practical experience in the mine during nonemergency situations.

c. Granted belt air petition requirements not included as provisions in the final belt air rule.

In the preamble of the proposed rule, we summarized our analysis of the latest granted petition requirements from 2000 and 2001. Some commenters to the proposed rule questioned why we limited our analysis to petitions granted during 2000 and 2001. They identified specific petitions granted prior to 2000 and referenced some of these requirements. Some commenters suggested we should not have limited the analysis to that period, and that we should review all of the granted petitions. In response to these comments, we have reviewed nearly all of the petitions granted since 1978 in order to determine if there are any provisions not included in the final rule that are directly related to the safe use of belt air and are not already addressed by existing standards.

We identified these requirements and considered whether they should be included in the final rule. Some of the early petition requirements identified are strengthened by the final rule, and some, while not specifically covered by this rule, are addressed in the mine ventilation plan approval process or by existing standards. Three phases of belt air granted petition requirements exist: those before the 1989 BEVR Report, those granted after publication of the BEVR report but before the 1996 revision of part 75 subpart DVentilation, and those granted after 1996. Requirements increased during each time period and became more consistent after 1996.

We have reviewed differences between the final rule's provisions and the requirements in granted petitions and a generic petition that was submitted as a posthearing comment. While we have adopted a majority of requirements contained in the 79 granted petitions reviewed, there are requirements in some of these granted petitions that we did not include in the final rule. We discuss these requirements below. It should be noted that the generic petition language is comparable to requirements in granted petitions. (1) Granted petition requirement: Sensors shall be installed ``* * * as near to the roof as feasible (efforts toward monitoring within 12 inches of the roof) * * *'' or, sensors shall be installed ``* * * in the upper third of the entry * * *''

Research on fire detection has shown the placement of sensors is critical to effective early fire detection. Buoyancy of heated air is recognized as a significant force in spreading products of combustion. For this reason, most granted petitions contain language requiring sensors to be installed in the upper third of the entry. Comments were received from both industry and labor indicating the ``upper third'' requirement from existing petition language was adequate. We have included language in the final rule requiring the installation of sensors in the upper third of the entry rather than language from the proposed rule (as close to the roof as feasible). For example, in a seam height of 6 feet, sensors must be installed within 24 inches of the roof, while as in a seam height of 48 inches, the sensor must be installed within 16 inches of the roof. This would not preclude operators from installing CO sensors as close to the roof as practicable, so long as the installation of the sensors was done in a manner to appropriately monitor air flow within that entry. Accordingly, in either situation, the location of the sensor would not reduce protections found in existing granted petition requirements. The final provision language reflects our response to public comments and our experience with granted petition requirements.
(2) Granted petition requirement: Tables are used to determine alert and alarm levels in many granted petitions.

The tables identifying alert and alarm levels for mines with various air flow velocities and belt entry dimensions were developed from the nomographs published in the Bureau of Mines document, RI 9380Fire Detection for Conveyor Belt Entries. These tables were included in a large number of granted petitions. This fire detection research set alert and alarm levels based upon air velocity, cross sectional area, and CO generation rates from smoldering and burning fuel sources. This research was presented as nomographs used to set CO sensor settings for different sensor spacings using air velocity and entry area parameters. Tables were derived in an attempt to simplify the application of research data because the nomographs were difficult to use. For example, the maximum velocity allowed by the tables for alert and alarm levels of 5 and 10 ppm CO is 700 feet per minute (fpm). A reduction to 4 and 8 ppm alert and alarm levels would allow velocities as high as 1,680 fpm according to the tables. Because of overlap in the tables, conflicting determinations for alert and alarm settings can occur. Though the tables provided a method for reducing alert and alarm settings based on increased air flow quantities and crosssectional areas, they have not always proven to be accurate because of variations in entry configuration and air velocity in an air course. MSHA believes that the mine ventilation plan
[[Page 17487]]
offers the best tool to handle special circumstances, such as when alert and alarm levels lower than 5 and 10 ppm, respectively, are needed due to increased air volume. Reduced alert and alarm levels will offset the effects of dilution caused by a higher air volume, thus maintaining the effectiveness of the AMS. These tables have not been specifically included in the final rule, but the information provided by the Bureau of Mines research will be considered by MSHA district managers when approving mine ventilation plans, including the alert and alarm levels established for compliance with the final rule.

Some older granted petitions required alert and alarm levels to be set at 10 and 15 ppm CO above the ambient levels, respectively. These operations will be required by the final rule to increase protection by reducing these levels to 5 and 10 ppm above ambient or lower, respectively. Some granted petitions required the use of RI 9380 to set alert and alarm levels. The Agency believes there may be cases where the alert and alarm levels may need to be further reduced below 5 and 10 ppm, respectively, and the district manager should have available all research information to assist in determining the most appropriate settings.
(3) Granted petition requirement: The method used to determine ambient level.

Many granted petitions include specific language on the method for determining the ambient CO levels. Other granted petitions allow a specified method to be used, or an alternate method approved by MSHA. Many mines have already established appropriate ambient levels and methods that are included in approved mine ventilation plans, as required since 1992 by existing Sec. 75.371(hh). For example, if a mine operator submits in the ventilation plan an ambient concentration of zero ppm, there will be no need to document the determination. If an operator requests an ambient concentration of eight ppm, MSHA would require documentation to approve such an ambient including the method used and CO levels measured. A single method for determining the ambient is not included in the final rule to give mine operators and district managers flexibility in establishing appropriate ambient levels that account for minespecific situations. Any additional requirement on this issue is likely to be duplicative of former Sec. 75.351.
(4) Granted petition requirement: Consideration of multiple entries is specifically addressed.

The effect of common entries on air flow is a complex issue. We have evaluated one entry in common (not separated by stoppings) with the belt entry and have discovered there is continual communication (air flow) between the two entries. MSHA has discouraged excessive numbers of common entries in the mine ventilation plan approval process, especially in mines using an AMS for fire detection. Air velocities can be difficult to maintain at or above 50 fpm in many of these mines. According to the results of recent NIOSH research (Edwards et al., 1999), CO sensors have proven effective at lower air velocities, when sensor spacing is reduced. Our experience is that the mine ventilation plan approval process assures the safe use of belt air by requiring AMS sensor locations that reflect the actual ventilation pattern in the mine. The Agency conducts ventilation surveys in many mines to determine the adequacy of a variety of mine ventilation plan specifications. The district manager has the authority to require either lower alert and alarm settings, additional CO sensor installations, or a combination of the two depending on the results of the MSHA survey.
(5) Granted petition requirement: Requirement for implementation of dieseldiscriminating sensors.

Neither the proposed rule nor the final rule require the use of dieseldiscriminating sensors (DDSs). However, some commenters suggested that the Agency require the use of such sensors. Currently, only three nontwoentry granted petitions require diesel
discriminating sensors. One of these mines is closed, one mine never implemented the granted belt air petition, and one is active. This active mine benefits from the use of DDS because dieselpowered equipment emissions contaminate the belt entry, thus increasing the occurrence of nonfire alert and alarm signals if standard CO sensors were used. DDS technology reduces the incidence of these nonfire alert and alarm signals. Not all mines that use dieselpowered equipment would benefit from installing these sensors because the exhaust emissions in some mines are isolated from the belt entry due to the mining system employed. For this reason, the final belt air rule gives the mine operator the option of using such a sensor in reducing nuisance alert and alarm signals. Using DDS to detect nonfire alert and alarm signals is not required because some mining systems either do not use dieselpowered equipment or do not use such equipment near the belt entry. Mine operators are encouraged to explore all methods for reducing the occurrence of alert and alarm signals due to diesel powered engine exhaust emissions and other mine gases. As stated above, DDSs are effective in detecting fires while reducing the frequency of nuisance alert and alarm signals. Other methods and new technology may be equally or more effective, so limiting the technology to DDS in the final rule would inhibit the future application of technology providing increased protection. In addition, by requiring the mine operator to meet the requirements of Sec. 75.352Actions in response to AMS malfunction, alert, or alarm signals, this final rule maintains protections currently afforded miners covered by these three granted petitions.

Research is continuing on fire detection technology in both the public and private sectors. In 2003, MSHA evaluated a sensor designed to measure CO in areas where hydrogen could be present, such as in the vicinity of battery charging stations. The sensor was found to be insensitive to hydrogen while providing accurate measurements of CO in gas mixtures. Any methods for reducing nuisance and false alert and alarm signals, including the implementation of the DDS technology and hydrogeninsensitive technology, must be approved in the mine ventilation plan.
(6) Granted petition requirement: Requirement for notification of miners of alert signals.

The proposed rule did not require automatic notification of personnel on working sections and setup or removal areas in the event of a single alerting sensor, but did require such notification in the event of an alarming sensor. Similarly, the final rule does not require notification of personnel on working sections and on setup or removal areas following an alert signal from a single sensor. However, the final rule requires an investigation of the cause of the alert signal and the appropriate personnel are expected to investigate the cause of the alert signal. In response to comments received on the proposed rule and current petition requirements, an additional requirement to the provision (Sec. 75.352(c)) has been added to the final rule. During the alert mode, notification and removal of miners to a safe location is required only if two or more consecutive sensors reach and maintain alert status. This situation suggests a possible developing fire, thus removal of miners to a safe location is required and investigation of the signaling sensors is required to determine the cause. Automatic section signals are required by recently granted petitions
[[Page 17488]]
for alarm signals, which is consistent with both the proposed and final rule. Many older granted petitions required the sensor located near the section tailpiece to automatically activate the section alarm unit upon alert or alarm levels of CO being detected. These same mines utilized alert and alarm levels of 10 and 15 ppm, respectively. At 10 ppm CO, miners would be withdrawn to an area either outby the alerting sensor or to the section loading point. In either event, miners withdrawn to these locations may still be in danger, depending on where the fire is located. This final rule exceeds the requirements in these older granted petitions because miners are removed to a safe location pending investigation of a potential fire. In addition, an investigation would have been initiated by the AMS operator upon receiving an alert signal at 5 ppm CO. This further increases protections afforded miners beyond those set forth by the petition requirements.

The newer petitions simply require notification of the affected working sections and investigation of the cause of the actuation. No additional actions are required for the affected sections. Because of this, MSHA sees no benefit of notification of miners in the affected sections unless these miners are necessary to investigate the alert signal. The primary reason for not requiring notification on an affected working section of a single alert signal is that it will reduce the incidence of the ``cry wolf'' syndrome, in which alert and alarm signals are discounted by miners as related to nonfire sources, such as dieselpowered equipment or welding fumes, and not to a real fire event. The final rule maintains the existing level of protection. (7) Granted petition requirement: Requirement for automatic activation of section alarm for sensors on panel; sensors 4,000 feet outby during initial development.

The final rule exceeds these granted petition requirements in that any outby or upwind sensor indicating CO alarm levels requires activation of the working section alarm for all affected areas. For example, if the most outby sensor on the belt was to detect an alarm level of CO, and air passing this sensor could travel to all working sections and setup or removal areas, then all alarms in the mine must activate to notify miners.
(8) Granted petition requirement: Mine phones are required to be located at intervals not to exceed 2,000 to 2,500 feet when mine personnel patrol and monitor the belt on system malfunctions.

The final rule requires maximum phone spacing of 2,000 feet when mine personnel monitor by patrolling if AMS components are inoperative for any reason. Many older granted petitions do not include phone spacing requirements. Others require specific spacing of 2,000 feet as the granted condition. Many existing granted petitions have duplicative requirements that are already required in existing Sec. 75.1600 Communications, including requirements for the repair and location of the phone system.
(9) Granted petition requirement: Hand monitoring for products of combustion only permitted for a short period of time.

The final rule, as in the proposed rule, does not limit the length of time allowed to hand monitor the belt entry in cases of sensor or system failure. Hand monitoring is considered to provide equivalent protection because similar sensor technology is used during hand monitoring and alert and alarm levels are reported immediately to the AMS operator. No specific comments were received regarding the duration of hand monitoring. However, we believe it is in the best interest of the operator and miners to repair the AMS as quickly as possible. Hand monitoring is considered a safe alternate method that provides the same level of protection as the AMS. However, it is labor intensive and therefore, far more costly than the AMS in monitoring the belt entry, so we believe that mine operators will limit the duration of hand monitoring.
(10) Granted petition requirements: Pressure differentials maintained from escapeway to the belt air course when practicable; limit the pressure drop to lowest attainable level to escapeway from the belt when not feasible; and limiting total airflow to 50 percent of the total section intake.

Recently granted petitions include some combination of these requirements. The pressure differential requirement was thoroughly discussed in the Advisory Committee report and the proposed rule preamble. The Agency agrees that it would be prudent to minimize leakage from the belt air course to the primary escapeway to the greatest extent possible. Absolute control on the pressure drop is nearly impossible. However, the Agency has included in the final rule the provision that unless otherwise approved by the district manager, the belt entry can contribute no more than 50% of intake air that ventilates working sections and setup or removal areas. This requirement is included in many granted petitions but was not included in the proposed rule because at the time MSHA believed it was best addressed on a minebymine basis through the ventilation plan process. However, the requirement is included in this final rule due to commenters' concern that operators could provide a majority of the working section intake air from the belt air course, which would more likely create a pressure drop from the belt air course to the primary escapeway. This new provision is consistent with the intent of the proposed rule. The pressure differential from the belt air course to the primary escapeway will be minimized to the extent feasible. This will help to assure that the primary escapeway will be kept free of the products of combustion by balancing the pressures between the air courses, thereby minimizing leakage to the extent possible. Proper stopping construction and maintenance along with ventilation system design considerations can properly protect the integrity of the primary escapeway. Further clarif

FOR FURTHER INFORMATION CONTACT

Marvin W. Nichols, Director; Office of Standards, Regulations, and Variances, MSHA; phone: (202) 6939442; facsimile: (202) 6939441; Email: nichols.marvin@dol.gov.

You may obtain copies of the final rule in alternative formats by calling his number or downloading the document from our Web site. The alternative formats available are either a largeprint version of this document or an electronic file that can be sent to you either on a computer disk or an attachment to an email. The document also is available on the Internet at http://www.msha.gov/REGSINFO.HTM.

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