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determined that the suspension should be lifted and paragraphs (c)(4)(i) through (c)(4)(iv) of 30 CFR 817.121 should be rescinded because they were vacated by court order in 1999 and it is confusing to allow these inoperative provisions to remain in the Federal regulations.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 ( printed 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.