Introduction
The Office of Surface Mining Reclamation and Enforcement (OSMRE), part of the Department of the Interior, has confirmed January 27, 2026, as the effective date for a direct final rule rescinding specific portions of federal regulations on subsidence controls for underground mines. Published on November 28, 2025, in the Federal Register, this rule lifts a long-standing suspension and removes paragraphs (c)(4)(i) through (c)(4)(iv) of 30 CFR 817.121. These paragraphs dealt with a rebuttable presumption of causation for damage to non-commercial buildings or occupied residential dwellings resulting from earth movement in areas defined by an angle of draw from underground mine workings. The significance of this development lies in its effort to clarify the regulatory landscape by eliminating inoperative language that has been unenforceable for over 25 years, stemming from a 1999 court decision. This action addresses potential confusion in the Surface Mining Control and Reclamation Act (SMCRA) implementing regulations without introducing new requirements or changes to existing protections for affected parties.
Background and Regulatory History
The provisions in question originated from OSMRE's efforts to implement SMCRA, enacted in 1977 to regulate surface coal mining and reclamation operations, including protections against subsidence from underground mining. Subsidence refers to the sinking or settling of the earth's surface due to underground excavations. In 1995, OSMRE adopted rules under 30 CFR 817.121(c) that included a rebuttable presumption mechanism. This meant that if damage occurred within a specified angle of draw—typically a 30-degree projection from the mine's boundary to the surface—mining operations were presumed responsible unless they could prove otherwise.
This presumption aimed to ease the burden on property owners seeking redress for subsidence-related damages. However, the National Mining Association challenged it in court. In Nat'l Mining Ass'n v. Babbitt (1999), the U.S. Court of Appeals for the District of Columbia Circuit struck down the provisions, ruling that OSMRE lacked sufficient evidence to justify the presumption that mining caused damage within the angle of draw. The court found the agency's rationale inadequate, stating, 'OSM failed to provide adequate support to justify its presumption that damage was the result of mining within the angle of draw.' As a result, OSMRE suspended the rules on December 22, 1999, via a Federal Register notice (64 FR 71652), but left the text in the Code of Federal Regulations (CFR).
For more than two decades, these suspended provisions have had no legal effect, yet their presence in the CFR could mislead stakeholders unfamiliar with the full history. The recent direct final rule addresses this by formally rescinding the language, aligning the CFR with the judicial outcome.
Key Players and Process
OSMRE, led by Acting Deputy Director Thomas D. Shope, initiated this rulemaking under docket number OSM-2025-0009 and Regulatory Identification Number (RIN) 1029-AC91. The agency opted for a direct final rule, a streamlined process under the Administrative Procedure Act that allows rules to take effect without prior notice and comment if they are non-controversial and no significant adverse comments are received.
During the comment period following the November 28, 2025, publication, OSMRE received one substantive comment. The commenter opposed the removal, arguing it would increase the evidentiary burden on citizens seeking compensation for damages near underground mines and that such a change required full notice-and-comment rulemaking. OSMRE rejected this as not constituting a significant adverse comment, explaining that the provisions have been suspended and unenforceable since 1999. The agency noted, '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.'
This determination underscores OSMRE's view that the action is ministerial—merely housekeeping to remove defunct text—rather than a substantive policy shift.
Legal Precedents and Political Context
The 1999 court decision in Nat'l Mining Ass'n v. Babbitt set a key precedent by emphasizing the need for robust evidentiary support in regulatory presumptions. It highlighted tensions between environmental protections under SMCRA and industry concerns over liability. SMCRA requires operators to minimize subsidence and repair or compensate for damages, but without the presumption, affected parties must prove causation through evidence like engineering reports or expert testimony.
Politically, this rescission occurs amid ongoing debates over regulatory efficiency and deregulation efforts. While not tied to specific executive actions, it reflects broader administrative goals to streamline federal rules. Industry groups, such as the National Mining Association, have long supported removing invalidated provisions to reduce regulatory clutter. Conversely, environmental advocates and citizen groups might view it as diminishing protections, though OSMRE maintains no change in substantive law.
Different perspectives emerge: Mining operators argue the presumption was overly broad and unfair, potentially leading to unwarranted liability. Property owners and environmentalists contend that without it, proving causation is challenging, especially in rural areas with limited resources. Legal experts note that state programs under SMCRA can still impose similar presumptions if approved by OSMRE, providing a patchwork of protections across jurisdictions.
Implications and Perspectives
In the short term, this rule clarifies the federal regulatory text, potentially reducing confusion for regulators, operators, and the public. It does not alter operators' obligations under remaining SMCRA provisions, which still mandate prevention, repair, or compensation for subsidence damages.
Long-term implications include possible calls for new rulemaking to address the gap left by the 1999 decision. OSMRE acknowledged it could revisit the topic but emphasized this action does not preclude future efforts. If pursued, any new presumption would require stronger justification to withstand judicial scrutiny.
Perspectives vary. Industry stakeholders see it as a win for regulatory certainty, eliminating 'zombie' rules. Critics, like the sole commenter, worry it signals a retreat from citizen protections, though OSMRE counters that the status quo remains unchanged. Academics might analyze it as an example of administrative law's emphasis on procedural rigor in rulemaking.
Conclusion
This direct final rule by OSMRE removes outdated, court-invalidated language from federal mining regulations, confirming a long-overdue cleanup of the CFR. Key takeaways include the affirmation of the 1999 judicial remand and the agency's dismissal of opposition as non-significant. Moving forward, potential next steps could involve stakeholder-driven initiatives for updated subsidence rules, while challenges persist in balancing industry efficiency with robust property protections. Ongoing debates may center on whether federal standards should evolve to incorporate modern scientific evidence on subsidence causation.
