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. 110161, 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.
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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 twoyear 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 flameresistant 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. SectionbySection Analysis
A. FlameResistant Conveyor Belt

1. General

In the 1980s, MSHA and the former Bureau of Mines (Bureau) of the Department of the Interior developed a flameresistance 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 largescale 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 largescale flammability test data to develop the Belt Evaluation Laboratory Test (BELT), a laboratoryscale flame resistance test. In order for a belt to pass the BELT method, it must have improved fireresistant capability, which greatly limits flame propagation. The BELT method is easy to perform, objective, correlates well with largescale tests, and is economically and technologically feasible. MSHA and the Bureau performed extensive testing of the BELT method. Test results over a 34month 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 Sec. 18.65 concerning flametesting 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. 1Conveyor Belt Flammability Testing and Approval, and Recommendation No. 3Improved 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 flameresistant conveyer belts. In addition, the final rule requires that improved flameresistant 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 Sec. 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 oneyear 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
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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 Sec. 14.2 establishes the following definitions: ``Applicant'', like the proposal, is derived from existing Sec. Sec. 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 Sec. 7.2, and replaces the term ``acceptance'' under existing Sec. 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 Sec. 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.
``Flameretardant 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.
``Postapproval product audit'', like the proposal, is derived from existing Sec. 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 Sec. 14.3, derived from existing Sec. 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 flameresistant conveyor belt be as transparent as possible, while safeguarding the confidentiality of all proprietary information submitted by applicants. The Agency made a minor nonsubstantive change, which clarifies that it is not necessary to state that MSHA be included in the parties allowed to observe testing and evaluation.

Final Sec. 14.4, like the proposal, is derived from existing Sec. Sec. 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 flameresistant conveyor belt, final Sec. 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 Sec. 14.4(a), like the proposal, is based on existing Sec. Sec. 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 3045472044. 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 multipleply 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 multipleply construction is requested, the minimum and maximum number of plies both with thinnestspecified cover thickness and heaviestspecified fabric weight will be tested.

Final Sec. 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 Sec. 14.4(b)(3) has been renumbered as Sec. 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 (email) address. MSHA received no comments on the proposal.

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Proposed Sec. 14.4(b)(2) has been renumbered as final Sec. 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, styrenebutadiene 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 flameretardant 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 flameresistant 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 Sec. 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 Sec. 14.4(b)(4) has been renumbered as final Sec. 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 Sec. 14.4(c)(1).

Final Sec. 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 Sec. 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 flameresistant belt. Further, additional information required under the final rule will allow MSHA to provide a full evaluation of the belt application.

Final Sec. 14.4(d), renumbered from proposed Sec. 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 Sec. 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 MSHAassigned 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 email address. MSHA received no comments on the proposal.

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

Final Sec. 14.4(g), renumbered from proposed Sec. 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 Sec. 14.5, like the proposal, requires that upon request by MSHA, each applicant must submit three precut, 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 laboratoryscale test for flame resistance requires testing of three samples to determine acceptable performance. The final rule requires precut 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 ``precut'' to inform the applicant that the samples would need to be sent to MSHA already cut to the required sample size. Under existing Sec. 18.65(a), acceptance applicants are required to submit samples for testing.

Curling of samples has presented a problem during testing. These [[Page 80584]]
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 Sec. 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 Sec. 14.6, like the proposal, addresses issuance of approval. Final Sec. 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 Sec. 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 Sec. 14.7, like the proposal, includes requirements for approval marking and distribution records. Final Sec. 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 Sec. 14.7(b), like the proposal, is based on existing Sec. 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 Sec. 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 Sec. 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 fiveyear retention period conforms to MSHA's audit cycle.

During the rulemaking process and at each of the public hearings, MSHA requested comments on the 5year 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 endof service life. Based on MSHA's experience and data, a fiveyear retention period is adequate to discover any potential hazardous defects, such as through MSHA's postapproval audit process.

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

Final Sec. 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 flameresistance characteristic. This assures that the finished conveyor belt slab will meet the flameresistance test. MSHA received no comments on the proposal.

Final Sec. 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 Sec. 7.7. MSHA received no comments on the proposal.

Final Sec. 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 Sec. 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, email, 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 Sec. 14.9 is derived from existing Sec. 18.9. It addresses the disclosure of information. Final Sec. 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 Sec. 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 [[Page 80585]]
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 Sec. 14.10 provides for postapproval product audits. Final Sec. 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 postapproval 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 postapproval product audits under other existing regulations, such as Sec. 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 Sec. 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 Sec. 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 Sec. 14.3, which is designed to protect proprietary rights of approval holders and not delay the audit process.

Final Sec. 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 Sec. 14.11 will be followed.

Final Sec. 14.11, like the proposal, includes requirements for revocation. Final Sec. 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 Sec. 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 Sec. 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 Sec. 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 casebycase basis consistent with requirements contained in the APA.

Final Sec. 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.

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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 lifethreatening hazards. Once an approval is suspended, MSHA will notify the mining community of this action.

Final Sec. 14.20, like the proposal, requires that conveyor belts for use in underground coal mines be flame resistant and tested under final Sec. 14.20 (a) or (b). Under final paragraph (a), testing must be in accordance with the flame test specified in final Sec. 14.22. Under final paragraph (b), testing must be in accordance with an alternate test determined by MSHA to be equivalent under existing Sec. 6.20 and final Sec. 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 flameresistant 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 Sec. 14.21, like the proposal, describes the principal parts of the BELT apparatus used to test for flame resistance of conveyor belts. Final Sec. 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 largescale belt flammability studies. The test chamber must be constructed from 1 inch (2.5 cm) thick Marinite I[supreg], or equivalent insulating material. Should minor cracking occur in the Marinite I[supreg], it can be repaired using an appropriate sealant. However, the Marinite I[supreg] 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 Sec. 14.21(b), like the proposal, requires a 16gauge (0.16 cm) stainless steel duct section, tapering over at least a 24inch (61 cm) length from a 20inch (51 cm) square crosssectional area at the test chamber connection to a 12inch (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 Sec. 14.21(c), like the proposal, requires a Ushaped 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 Ushaped 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[supreg] Corporation Model U10, 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 largescale 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 Sec. 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
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emission standards. MSHA received no comments on the proposal.

Final Sec. 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 Sec. 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 Sec. 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 [deg]F (21 5 [deg]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 Sec. 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 Sec. 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 Sec. 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 largescale belt flammability studies. MSHA received no comments on the proposal.

Final Sec. 14.22(a)(5), like the proposal, requires measuring the airflow with a 4inch (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 largescale 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 Sec. 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[deg] Fahrenheit (35[deg] 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[deg] Fahrenheit (10[deg] 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 largescale 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 Sec. 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
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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[deg] 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 Sec. 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 [deg]F and one atmosphere pressure (1 cubic liter at 22 [deg]C and 101 kilopascals). The specified gas flow provides a stable flame and is based on a comparison of the test results with the largescale belt flammability studies. MSHA received no comments on the proposal.

Final Sec. 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 Sec. 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 Sec. 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 largescale belt flammability studies. MSHA received no comments on the proposal.

Final Sec. 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 Sec. 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 75Mandatory Safety StandardsUnderground Coal Mines Subpart L Fire Protection

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

Final Sec. 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 Sec. 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 oneyear transition period. Notice of an extension would be published in the Federal Register.

Final Sec. 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.'' T

FOR FURTHER INFORMATION CONTACT

Patricia W. Silvey at silvey.patricia@dol.gov (email), (202) 6939440 (Voice), or (202) 693 9441 (Fax).