Rule2026-01570
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
January 27, 2026
Effective
January 27, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
The Office of Surface Mining Reclamation and Enforcement (OSM) is confirming the effective date of January 27, 2026, for the direct final rule "Rescission of Portions of Permanent Program Performance Standards Related to Siltation Structures," published on November 28, 2025. The direct final rule removes paragraphs that required that all surface drainage from the disturbed area pass through a siltation structure before leaving the permit area. These provisions were struck down by a reviewing court in 1985 and have no legal effect but were never removed from the Code of Federal Regulations. During the comment period, OSM received one substantive comment. That comment was not a significant adverse comment because it did not effectively challenge the rule's underlying premise or approach or explain why the rule would be inappropriate without a change. As a result, the comment does not warrant a delay of the effective date.
Full Text
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<title>Federal Register, Volume 91 Issue 17 (Tuesday, January 27, 2026)</title>
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[Federal Register Volume 91, Number 17 (Tuesday, January 27, 2026)]
[Rules and Regulations]
[Pages 3372-3373]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01570]
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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; confirmation of effective date.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is confirming the effective date of January 27, 2026, for the direct
final rule ``Rescission of Portions of Permanent Program Performance
Standards Related to Siltation Structures,'' published on November 28,
2025. The direct final rule removes paragraphs that required that all
surface drainage from the disturbed area pass through a siltation
structure before leaving the permit area. These provisions were struck
down by a reviewing court in 1985 and have no legal effect but were
never removed from the Code of Federal Regulations. During the comment
period, OSM received one substantive comment. That comment was not a
significant adverse comment because it did not effectively challenge
the rule's underlying premise or approach or explain why the rule would
be inappropriate without a change. As a result, the comment does not
warrant a delay of the effective date.
DATES: The effective date of the rule is January 27, 2026.
FOR FURTHER INFORMATION CONTACT: James Tyree, Division of Regulatory
Support, (202) 208-4479, <a href="/cdn-cgi/l/email-protection#157f616c677070557a667867703b727a63"><span class="__cf_email__" data-cfemail="c2a8b6bbb0a7a782adb1afb0a7eca5adb4">[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: The direct final rule published at 90 FR
54575 will become effective on January 27, 2026. OSM received one
substantive comment on the direct final rule during the comment period,
but that comment was not a significant adverse comment and
[[Page 3373]]
does not warrant withdrawal or the issuance of a new final rule because
the commenter misunderstands the effect of the rule and OSM's rationale
for pursuing this revision through a direct final rule.
The commenter first argues that the removal of 30 CFR 816.46(b)(2)
and 817.46(b)(2) are not appropriate through a direct final rule
because the provisions relate to the prevention of damage to the
hydrologic balance outside the permit area and that any OSM rule
related to water quality is controversial due to concerns about water
quality degradation from coal mines. However, this comment
misunderstands the reason OSM is removing these provisions. Despite
defending these provisions in court, the United States District Court
for the District of Columbia remanded these provisions to OSM on July
15, 1985, because the court found OSM's rationale for these provisions
flawed, and OSM later suspended them. These provisions have been
suspended for forty years and removing them from the Code of Federal
Regulations now will have no effect on whether or not siltation
structures are required on surface coal mining and reclamation
operations because these provisions are not enforceable and have no
legal effect.
The commenter noted that the court in the In Re Permanent Surface
Mining Regulation Litigation case did not determine that the Secretary
lacked authority to determine what technology or technologies
constituted the best technology currently available and argue that,
because OSM does not lack authority to determine what technology
constituted the best technology currently available, OSM should not
remove the inoperative language without conducting notice and comment
rulemaking. While it is true that OSM is not prohibited from conducting
a rulemaking on this topic, the language to be removed in this direct
final rule has been inoperative for 40 years. With this direct final
rule, OSM is not proposing a change to the regulations in effect, it is
merely removing language that has no application and could be confusing
to someone without deep familiarity with the history of the SMCRA
implementing regulations and esoteric procedures related to the Code of
Federal Regulations. Removing inoperative language will not impact the
current requirements of SMCRA, the Federal regulations, or impact water
quality on or near surface coal mines.
Finally, the commenter alleged that removal of language vacated by
a court through a direct final rule is not appropriate because it does
not make notice and comment under 5 U.S.C. 553 ``impracticable,
unnecessary, or contrary to the public interest.'' OSM disagrees.
Certainly, if OSM were to propose new language to address the court's
concerns, notice and comment rulemaking would be necessary. However,
here, the provision cannot be enforced, has been suspended for forty
years, and is merely being removed to avoid confusion. To invite
comment on the deletion of language invalidated by a court forty years
ago would be a waste of the public's time.
After considering this comment, OSM has determined that it is not a
significant adverse comment and does not warrant delaying the effective
date of this final rule.
Lanny E. Erdos,
Acting Assistant Secretary, Land and Minerals Management.
[FR Doc. 2026-01570 Filed 1-26-26; 8:45 am]
BILLING CODE 4310-05-P
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