Rule2025-21441
Rescission of Portions of Permanent Program Performance Standards Related to Siltation Structures
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 28, 2025
Effective
January 27, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
This direct final rule revises the Federal regulations to remove paragraphs that required that all surface drainage from the disturbed area pass through a siltation structure before leaving the permit area. These paragraphs were struck down on judicial review because the court found that the Office of Surface Mining Reclamation and Enforcement (OSMRE) had not articulated a sufficient basis for the rule under the Administrative Procedure Act and that OSMRE had not sufficiently demonstrated that siltation structures were the best technology currently available.
Full Text
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<title>Federal Register, Volume 90 Issue 227 (Friday, November 28, 2025)</title>
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[Federal Register Volume 90, Number 227 (Friday, November 28, 2025)]
[Rules and Regulations]
[Pages 54575-54577]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-21441]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 816 and 817
[Docket No. OSM-2025-0010; S1D1S SS08011000 SX064A000 256S180110; S2D2S
SS08011000 SX064A000 25XS501520]
RIN 1029-AC92
Rescission of Portions of Permanent Program Performance Standards
Related to Siltation Structures
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Direct final rule; request for comments.
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SUMMARY: This direct final rule revises the Federal regulations to
remove paragraphs that required that all surface drainage from the
disturbed area pass through a siltation structure before leaving the
permit area. These paragraphs were struck down on judicial review
because the court found that the Office of Surface Mining Reclamation
and Enforcement (OSMRE) had not articulated a sufficient basis for the
rule under the Administrative Procedure Act and that OSMRE had not
sufficiently demonstrated that siltation structures were the best
technology currently available.
DATES: The final rule is effective January 27, 2026, unless significant
adverse comments are received by December 29, 2025. If significant
adverse comments are received, notice will be published in the Federal
Register before the effective date either withdrawing the rule or
issuing a new final rule which responds to significant adverse
comments.
ADDRESSES: You may submit comments by one of the following methods:
<bullet> Electronically: Go to the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for Docket Number OSM-2025-0010.
Follow the instructions for submitting comments.
<bullet> By hard copy: Submit by U.S. mail to Division of
Regulatory Support, Office of Surface Mining Reclamation and
Enforcement, Department of the Interior, Attn: James Tyree, 1849 C
Street NW, Mail Stop 4557, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: James Tyree, Division of Regulatory
Support, (202) 208-4479, <a href="/cdn-cgi/l/email-protection#bcd6c8c5ced9d9fcd3cfd1ced992dbd3ca"><span class="__cf_email__" data-cfemail="fc9688858e9999bc938f918e99d29b938a">[email protected]</span></a>. Individuals in the United
States who are deaf, deafblind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to
[[Page 54576]]
access telecommunications relay services. Individuals outside the
United States should use the relay services offered within their
country to make international calls to the point-of-contact in the
United States.
SUPPLEMENTARY INFORMATION: Paragraphs (b)(1) from both 30 CFR 816.46
and 30 CFR 817.46 require that ``additional contributions of suspended
solids sediment to streamflow or runoff outside the permit area shall
be prevented to the extent possible using best technology currently
available.'' Paragraphs (b)(2) of sections 816.46 and 817.46 required
that all surface drainage from the disturbed area pass through a
siltation structure before leaving the permit area. Forty years ago,
paragraphs (b)(2) of sections 816.46 and 817.46 were struck down on
judicial review because the court found that OSMRE had not articulated
a sufficient basis for the rule under the Administrative Procedure Act
and that OSMRE had not sufficiently demonstrated that siltation
structures were the best technology currently available in every case.
See In re Permanent Surface Mining Regulation Litigation, 620 F. Supp.
1519, 1566-1568 (D.D.C. 1985).
In response to the court's holding, OSMRE suspended paragraphs
(b)(2) from both 30 CFR 816.46 and 30 CFR 817.46 on November 20, 1986,
but did not remove them from the Code of Federal Regulations. 51 FR
41961 (Nov. 20, 1986). To avoid confusion that might result from the
continuing publication of those rules in the Federal regulations, over
a decade later, OSMRE attempted to remove paragraphs (b)(2) from
sections 816.46 and 817.46 and redesignate the remaining paragraphs of
those sections accordingly. 73 FR 75814, 75854 (Dec. 12, 2008). At that
time, however, OSMRE omitted the words ``lift the suspension'' prior to
directing the removal of the paragraphs, which had the effect of
rendering the removal of those paragraphs inoperable. On September 29,
2010, OSMRE published technical amendments, that among other things
lifted the suspension and removed the paragraphs. 75 FR 60272. However,
when the Stream Buffer Rule was vacated, a final rule was published
that erroneously reinstated the suspended provisions from the 2008 rule
albeit with a sentence noting the suspension instead of an actual
suspension. See, e.g., 79 FR 76227 (Dec. 22, 2014). OSMRE attempted to
remove the provisions again as part of the Stream Protection Rule. 81
FR 93392 (Dec. 20, 2016). However, that rule was later disapproved by
Congress and the prior language was reinstated. 82 FR 54979 (Nov. 17,
2017).
Upon reviewing these regulations, the 1985 court decision, and the
various Federal Register notices attempting to rescind these
regulations, OSMRE has determined that they should finally be rescinded
because they were struck down upon judicial review and paragraph (b)(1)
in sections 816.46 and 817.46 ensure that the best technology currently
available, which may include siltation structures, is used to prevent,
to the extent possible, additional contributions of suspended solids
sediment to streamflow or runoff outside the permit area. Additionally,
because the suspension was lifted in 2010, no further action is
necessary to lift the suspension at this time. This reason,
independently and alone, justifies rescission of paragraphs (b)(2) from
both 30 CFR 816.46 and 30 CFR 817.46. OSMRE has no interest in
maintaining regulations that have been struck down by court order.
The Department is issuing this rule as a direct final rule.
Although the Administrative Procedure Act (APA, 5 U.S.C. 551-559)
generally requires agencies to engage in notice and comment rulemaking,
section 553 of the APA provides an exception when the agency ``for good
cause finds'' that notice and comment are ``impracticable, unnecessary,
or contrary to the public interest.'' Id. Sec. 553(b)(B). The
Department has determined that notice and comment are unnecessary
because this rule is noncontroversial; of a minor, technical nature;
involves no agency discretion; and is unlikely to receive any
significant adverse comments. Significant adverse comments are those
that oppose the recission of the rule and raise, alone or in
combination, (1) reasons why the recission of the rule is
inappropriate, including challenges to the recission's underlying
premise, or (2) serious unintended consequences of the recission. A
comment recommending an addition to the rule will not be considered
significant and adverse unless the comment explains how this direct
final rule would be ineffective without the addition.
Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule does not result in a taking of private property or
otherwise have regulatory takings implications under Executive Order
12630. The rule rescinds a regulatory provision suspended by a court
since 1985; therefore, the rule will not result in private property
being taken for public use without just compensation. A takings
implication assessment is not required.
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this rule
is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866, while calling for improvements in the Nation's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
Executive Order 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that agencies must base regulations on the best
available science and that the rulemaking process must allow for public
participation and an open exchange of ideas. The Department developed
this rule in a manner consistent with these requirements.
Executive Order 12988--Civil Justice Reform
This direct final rule complies with the requirements of Executive
Order 12988. Among other things, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation;
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Executive Order 13132--Federalism
Under the criteria of section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. This rule will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government. A
federalism
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summary impact statement is not required.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian tribes through a
commitment to consultation with Tribes and recognition of their right
to self-governance and Tribal sovereignty. The Department evaluated
this direct final rule under Executive Order 13175 and the Department's
consultation policies and determined that it has no substantial direct
effects on federally recognized Indian tribes and that consultation
under the Department's Tribal consultation policies is not required.
The rule merely revises the Federal regulations to remove language made
obsolete by a 1985 court ruling.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This direct final rule is not a significant energy action as
defined in Executive Order 13211. Therefore, a Statement of Energy
Effects is not required.
National Environmental Policy Act
This direct final rule does not constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed statement under the National Environmental Policy Act (NEPA,
42 U.S.C. 4321 et seq.) is not required because this rule is covered by
a categorical exclusion applicable to regulatory functions ``that are
of an administrative, financial, legal, technical, or procedural
nature.'' 43 CFR 46.210(i). In addition, the Department has determined
that this rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
Paperwork Reduction Act
This rule does not impose any new information collection burden
under the Paperwork Reduction Act. OMB previously approved the
information collection activities contained in the existing regulations
and assigned OMB control number 1029-0047. This rule does not impose an
information collection burden because the Department is not making any
changes to the information collection requirements.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA, 5 U.S.C. 601-612) requires an
agency to prepare a regulatory flexibility analysis for all rules
unless the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The RFA
applies only to rules for which an agency is required to first publish
a proposed rule. See 5 U.S.C. 603(a) and 604(a). As the Department is
not required to publish a notice of proposed rulemaking for this direct
final rule, the RFA does not apply.
Congressional Review Act
This rule is not a major rule under the Congressional Review Act (5
U.S.C. 804(2)). Specifically, the direct final rule: (a) will not have
an annual effect on the economy of $100 million or more; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector, of more than $100 million
per year. The rule does not have a significant or unique effect on
State, local, or Tribal governments, or the private sector. The rule
merely revises the Federal regulations to remove an obsolete provision
that is no longer used. Therefore, a statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
List of Subjects
30 CFR 816
Environmental protection, Reporting and recordkeeping requirements,
Surface mining.
30 CFR 817
Environmental protection, Reporting and recordkeeping requirements,
Underground mining.
Leslie Shockley Beyer,
Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, the Department of the
Interior amends 30 CFR parts 816 and 817 as follows:
PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING
ACTIVITIES
0
1. The authority citation for part 816 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.; and sec 115 of Pub. L. 98-
146.
Sec. 816.46 [Amended]
0
2. Amend Sec. 816.46, by removing paragraph (b)(2), and redesignating
paragraphs (b)(3) through (6) as paragraphs (b)(2) through (5).
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
0
3. The authority citation for part 817 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 817.46 [Amended]
0
4. Amend 817.46, by removing paragraph (b)(2), and redesignating
paragraphs (b)(3) through (7) as paragraphs (b)(2) through (6).
[FR Doc. 2025-21441 Filed 11-26-25; 8:45 am]
BILLING CODE 4310-05-P
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</html>Indexed from Federal Register on November 28, 2025.
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