Rule2026-01622
Rescission of Portions of Permanent Program Performance Standards Regulating Subsidence Controls for Underground Mines
Primary source
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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 Regulating Subsidence Controls for Underground Mines," published on November 28, 2025. The direct final rule lifts the suspension of the regulatory provision 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. 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 3373-3374]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01622]
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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; 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 Regulating Subsidence Controls for Underground Mines,''
published on November 28, 2025. The direct final rule lifts the
suspension of the regulatory provision 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. 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 published November 28, 2025, at
90 FR 54577 is confirmed as January 27, 2026.
FOR FURTHER INFORMATION CONTACT: James Tyree, Division of Regulatory
Support, (202) 208-4479, <a href="/cdn-cgi/l/email-protection#b0dac4c9c2d5d5f0dfc3ddc2d59ed7dfc6"><span class="__cf_email__" data-cfemail="741e000d061111341b071906115a131b02">[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
54577 will become effective on January 27, 2026.
Over 25 years ago, the provisions identified in the direct final
rule were struck down on judicial review because the court found that
OSM 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). As noted in the November 28, 2025, direct
final rule and request for comments, OSMRE 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 the Federal regulations.
At the close of the comment period, OSM received one comment on
this rule expressing opposition to the elimination of the suspended
language without notice and comment rulemaking. The commenter argued
that deleting the language creating a rebuttable presumption of
causation for damage to any non-commercial building or occupied
dwelling or structure would be controversial because the result would
be to add to the evidentiary burden of a citizen seeking redress for
damage occurring near an underground
[[Page 3374]]
coal mine. But this argument is flawed and relies on a misunderstanding
of the facts. Despite defending this provision in court, a judge found
that OSM failed to provide adequate support to justify its presumption
that damage was the result of mining within the angle of draw and
remanded this provision to OSM. OSM then suspended this provision on
December 22, 1999. This provision has been suspended for more than 25
years and removing it from the Code of Federal Regulations now would
have no effect on the evidentiary burden of a citizen seeking redress
for damage occurring near an underground coal mine because the
provision is not enforceable and has no legal effect.
The commenter next alleged that because OSM has the authority to
create a rebuttable presumption of causation, that OSM should not be
allowed to remove the inoperative language without conducting notice
and comment rulemaking. While it is true that OSM could conduct a new
rulemaking on this topic, the language to be removed in this direct
final rule is inoperative and has been so for more than 25 years. With
this direct final rule, OSM is not proposing a change to the
regulations in effect or foreclosing a rulemaking on this topic in the
future, but 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 have any impact on the current requirements of SMCRA, the Federal
regulations, or on the evidentiary burden of a citizen seeking redress
for damages occurring near an underground coal mine.
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 more
than 25 years, and is merely being removed to avoid confusion. To
invite comment on the deletion of language invalidated by a judge more
than 25 years ago would be a waste of the public's time.
After careful consideration of this comment, OSM has determined it
is not a significant adverse comment and does not warrant delaying the
effective date of this final rule.
Thomas D. Shope,
Acting Deputy Director, Office of Surface Mining Reclamation and
Enforcement.
[FR Doc. 2026-01622 Filed 1-26-26; 8:45 am]
BILLING CODE 4310-05-P
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