Rule2025-21444
Rescission of Portions of Permanent Program Performance Standards Regulating Subsidence Controls for Underground Mines
Primary source
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Published
November 28, 2025
Effective
January 27, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
This direct final rule lifts the suspension and revises the Federal regulations to remove paragraphs related to establishing a rebuttable presumption of causation for damage to any non-commercial building or occupied residential dwelling or structure related thereto that occurs as a result of earth movement within an area determined by projecting a specified angle of draw from the outermost boundary of any underground mine workings to the surface of the land. These paragraphs were struck down on judicial review because the court found that the Office of Surface Mining Reclamation and Enforcement (OSMRE) failed to provide adequate support to justify its presumption that damage was the result of mining within the angle of draw.
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 54577-54579]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-21444]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 817
[Docket No. OSM-2025-0009; S1D1S SS08011000 SX064A000 256S180110; S2D2S
SS08011000 SX064A000 25XS501520]
RIN 1029-AC91
Rescission of Portions of Permanent Program Performance Standards
Regulating Subsidence Controls for Underground Mines
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 lifts the suspension and revises the
Federal regulations to remove paragraphs related to establishing a
rebuttable presumption of causation for damage to any non-commercial
building or occupied residential dwelling or structure related thereto
that occurs as a result of earth movement within an area determined by
projecting a specified angle of draw from the outermost boundary of any
underground
[[Page 54578]]
mine workings to the surface of the land. These paragraphs were struck
down on judicial review because the court found that the Office of
Surface Mining Reclamation and Enforcement (OSMRE) failed to provide
adequate support to justify its presumption that damage was the result
of mining within the angle of draw.
DATES: The amendments in this direct final rule lifting the suspension
at 30 CFR 817.(c)(4)(i) through (iv) and amending the section are
effective January 27, 2026, without further action, unless significant
adverse comments are received by December 29, 2025. If significant
adverse comments are received, OSMRE will publish a timely withdrawal
or issue a new final rule that 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-
0009]. 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#b6dcc2cfc4d3d3f6d9c5dbc4d398d1d9c0"><span class="__cf_email__" data-cfemail="4228363b302727022d312f30276c252d34">[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 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 (c)(4)(i) through (c)(4)(iv) of
30 CFR 817.121 provided that if damage to any non-commercial building
or occupied residential dwelling or structures related thereto occurs
as a result of earth movement within an area determined by projecting a
specified angle of draw from the outermost boundary of any underground
mine workings to the surface of the land, a rebuttable presumption
would exist that the permittee caused the damage. The presumption
typically would have applied to a 30-degree angle of draw. Once the
presumption was triggered, the burden of going forward shifted to the
mine operator to offer evidence that the damage was attributable to
another cause.
Over 25 years ago, these provisions were struck down on judicial
review because the court found that OSMRE failed to provide adequate
support to justify its presumption that damage was the result of mining
within the angle of draw. Nat'l Mining Ass'n v. Babbitt, 172 F.3d 906,
912 (1999). In response to the court's holding, OSMRE suspended these
provisions on December 22, 1999, but did not remove the language from
the Code of Federal Regulations. 64 FR 71652, 71653 (Dec. 22, 1999).
OSMRE attempted to lift the suspension and remove these provisions as
part of the Stream Protection Rule in 2016 (81 FR 93418 (Dec. 20,
2020)). However, all proposed changes to OSMRE's regulations under the
Stream Protection Rule were disapproved by Joint Resolution under the
Congressional Review Act. Consequently, these removed provisions were
reinstated. 82 FR 54924 (Nov. 17, 2017). Although we recognize that the
Congressional Review Act at 5 U.S.C. 801(b)(2) prevents OSMRE from
reissuing the Stream Protection Rule in substantially the same form, we
find that lifting the suspension and removing these provisions
regarding a rebuttable presumption of causation is not substantially
the same as the Stream Protection Rule because of the housekeeping and
ministerial nature of removing an inoperative regulation.
Upon reviewing these regulations, OSMRE has determined that the
suspension should be lifted and paragraphs (c)(4)(i) through (c)(4)(iv)
of 30 CFR 817.121 should be rescinded because they were vacated by
court order in 1999, and it is confusing to allow these inoperative
provisions to remain in OSMRE's regulations. This reason, independently
and alone, justifies rescission of paragraphs (c)(4)(i) through
(c)(4)(iv) of 30 CFR 817.121. OSMRE has no interest in maintaining
regulations that have been vacated 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 little 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 vacated by a court in
1999; 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.
[[Page 54579]]
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 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 1999 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 1029-0048. 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 in 30 CFR Part 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 part 817 as follows:
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
0
1. The authority citation for part 817 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. In Sec. 817.121:
0
a. Lift the suspension of paragraphs (c)(4)(i) through (iv); and
0
b. Revising paragraph (c)(4).
The revision reads as follows:
Sec. 817.121 Subsidence control.
* * * * *
(c) * * *
(4) Rebuttable presumption of causation by subsidence. In any
determination whether damage to protected structures was caused by
subsidence from underground mining, all relevant and reasonably
available information will be considered by the regulatory authority.
* * * * *
[FR Doc. 2025-21444 Filed 11-26-25; 8:45 am]
BILLING CODE 4310-05-P
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