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115th Congress  }                                             {  Report
                                 SENATE
 2d Session     }                                             {  115-364

======================================================================



 
         REINSTATEMENT OF CERTAIN MINE CLAIMS FOR SMALL MINERS

                                _______
                                

               November 14, 2018.--Ordered to be printed

                                _______
                                

  Ms. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 884]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 884) to amend the Omnibus Budget 
Reconciliation Act of 1993 to require the Bureau of Land 
Management to provide a claimant of a small miner waiver from 
claim maintenance fees with a period of 60 days after written 
receipt of 1 or more defects is provided to the claimant by 
registered mail to cure the 1 or more defects or pay the claim 
maintenance fee, and for other purposes, having considered the 
same, reports favorably thereon with an amendment in the nature 
of a substitute and an amendment to the title, and recommends 
that the bill, as amended, do pass.
    The amendments are as follows:
    1. Strike all after the enacting clause and insert the 
following:

SECTION 1. SMALL MINER WAIVERS TO CLAIM MAINTENANCE FEES.

    (a) Definitions.--In this section:
          (1) Covered claimholder.--The term ``covered claimholder'' 
        means--
                  (A) the claimholder of the claims in the State 
                numbered AA023149, AA023163, AA047913, AA047914, 
                AA047915, AA047916, AA047917, AA047918, and AA047919 
                (as of December 29, 2004);
                  (B) the claimholder of the claim in the State 
                numbered FF (as of December 29, 2004);
                  (C) the claimholder of the claims in the State 
                numbered FF-58607, FF-58608, FF-58609, FF-58610, FF-
                58611, FF-58613, FF-58615, FF-58616, FF-58617, and FF-
                58618 (as of December 31, 2003); and
                  (D) the claimholder of the claims in the State 
                numbered FF-53988, FF-53989, and FF-53990 (as of 
                December 31, 1987).
          (2) Defect.--The term ``defect'' includes a failure--
                  (A) to timely file--
                          (i) a small miner maintenance fee waiver 
                        application;
                          (ii) an affidavit of annual labor associated 
                        with a small miner maintenance fee waiver 
                        application; or
                          (iii) an instrument required under section 
                        314(a) of the Federal Land Policy and 
                        Management Act of 1976 (43 U.S.C. 1744(a)); and
                  (B) to pay the required application fee for a small 
                maintenance fee waiver application.
          (3) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (4) State.--The term ``State'' means the State of Alaska.
    (b) Treatment of Covered Claimholders.--Notwithstanding section 
10101(d) of the Omnibus Budget Reconciliation Act of 1993 (30 U.S.C. 
28f(d)) and section 314(c) of the Federal Land Policy and Management 
Act of 1976 (43 U.S.C. 1744(c)), each covered claimholder shall, during 
the 60-day period beginning on the date on which the covered 
claimholder receives written notification from the Bureau of Land 
Management by registered mail of the opportunity, have the 
opportunity--
          (1)(A) to cure any defect in a small miner maintenance fee 
        waiver application (including the failure to timely file a 
        small miner maintenance fee waiver application) for any prior 
        period during which the defect existed; or
          (B) to pay any claim maintenance fees due for any prior 
        period during which the defect existed; and
          (2) to cure any defect in the filing of any instrument 
        required under section 314(a) of the Federal Land Policy and 
        Management Act of 1976 (43 U.S.C. 1744(a)) (including the 
        failure to timely file any required instrument) for any prior 
        period during which the defect existed.
    (c) Reinstatement of Claims Deemed Forfeited.--The Secretary shall 
reinstate any claim of a covered claimholder as of the date declared 
forfeited and void--
          (1) under section 10104 of the Omnibus Budget Reconciliation 
        Act of 1993 (30 U.S.C. 28i) for failure to pay the claim 
        maintenance fee or obtain a valid waiver under section 10101 of 
        the Omnibus Budget Reconciliation Act of 1993 (30 U.S.C. 28f); 
        or
          (2) under section 314(c) of the Federal Land Policy and 
        Management Act of 1976 (43 U.S.C. 1744(c)) for failure to file 
        any instrument required under section 314(a) of that Act (43 
        U.S.C. 1744(a)) for any prior period during which the defect 
        existed if the covered claimholder--
                  (A) cures the defect; or
                  (B) pays the claim maintenance fee under subsection 
                (b)(1)(B).

    2. Amend the title so as to read:
    ``A bill to require the Bureau of Land Management to 
provide certain covered claimholders the opportunity to cure 
any defects in a small miner maintenance fee waiver application 
or pay the claim maintenance fee, and for other purposes.''

                                PURPOSE

    The purpose of S. 884, as ordered reported, is to require 
the Bureau of Land Management (BLM) to provide certain covered 
claimholders the opportunity to cure any defects in a small 
miner maintenance fee waiver application or pay the claim 
maintenance fee.

                          BACKGROUND AND NEED

    In 1993, as part of the Omnibus Budget Reconciliation Act 
(Public Law 103-66), Congress established an annual claim 
maintenance fee that is required to hold a mining claim on 
public land. At the same time, a small miner waiver was created 
to allow claimholders with 10 or fewer claims to avoid paying 
the fee as long as they have performed assessment work on the 
claims in the amount of $100 per claim during the year and have 
certified in writing by September 1 that they hold 10 or fewer 
claims. Claimholders on public lands are also required to file 
an affidavit that they have performed assessment work on or 
before December 30 in compliance with section 314(c) of the 
Federal Land Policy and Management Act (FLPMA, 43 U.S.C. 
1744(c)).
    A mine claim is subject to forfeiture due to failure or 
tardiness in filing the required affidavit of assessment work; 
the small miner waiver application; the claim maintenance fee, 
or the small miner certification. While the Omnibus Budget 
Reconciliation Act provides an opportunity to cure any defects 
in a small miner waiver application within 60 days of a defect 
notification, BLM has ruled administratively that this grace 
period does not extend to a failure to file the small miner 
waiver application in a timely manner.
    In a number of instances, the mine claims of small placer 
miners, along with associated operation plans, have been voided 
due to untimely submission of annual filings-errors the small 
miners assert were caused by BLM clerical mistakes, mailing 
delays, or for unexplained reasons. In these cases, BLM 
terminated the claims with no notification of defect or 
allowance to correct any error.
    S. 884 provides four claimholders in Alaska who lost mine 
claims due to errors with an opportunity to cure any defect in 
the annual filing, including the failure to timely file the 
required application or instrument, and have the mine claims 
reinstated, as of the date the claim was declared forfeited and 
void.

                          LEGISLATIVE HISTORY

    S. 884 was introduced by Senator Murkowski on April 6, 
2017. The Subcommittee on Public Lands, Forests, and Mining 
held a hearing on the bill on July 26, 2017.
    In the 114th Congress, Senator Murkowski introduced similar 
legislation, S. 1395, on May 20, 2015.
    In the 113th Congress, Senator Murkowski introduced similar 
legislation, S. 366, on February 14, 2013. The Subcommittee on 
Public Lands, Forests, and Mining held a hearing on S. 366 on 
April 25, 2013 (S. Hrg. 113-28).
    In the 112th Congress, Senator Murkowski introduced a 
similar bill, S. 303, on February 8, 2011. The Subcommittee on 
Public Lands and Forests held a hearing on S. 303 on March 22, 
2012 (S. Hrg. 112-642).
    The Senate Committee on Energy and Natural Resources met in 
an open business session on October 2, 2018, and ordered S. 884 
favorably reported, as amended.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on October 2, 2018, by a majority voice 
vote of a quorum present, recommends that the Senate pass S. 
884, if amended as described herein.

                          COMMITTEE AMENDMENTS

    During its consideration of S. 884, the Committee adopted 
an amendment in the nature of a substitute and an amendment to 
the title. The substitute amendment narrows the bill's scope to 
cover four Alaskan miners and removes the broader policy 
changes that required BLM to provide any small miner with the 
opportunity to fix waiver application defects and have their 
claims reinstated. The substitute amendment also made a number 
of technical corrections and is further described in the 
section-by-section analysis. The title amendment reflects the 
changes made by the substitute amendment.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Small miner waivers to claim maintenance fees

    Subsection (a) defines key terms.
    Subsection (b) provides each covered claimholder with the 
opportunity to cure any defect in a small miner maintenance fee 
waiver application or pay any claim maintenance due, and cure 
any defect in the filings required by section 314(c) of FLPMA 
(43 U.S.C. 1744(c)) within 60 days from the date the 
claimholder receives notification from BLM via registered mail 
of the opportunity.
    Subsection (c) directs the Secretary of the Interior to 
reinstate any claim by a covered claimholder as of the date the 
claim was declared forfeited and void if the covered 
claimholder cures the defect or pays the claim maintenance fee 
that was the cause of the original forfeiture.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:
    Current law requires mining claimholders to pay claim 
maintenance fees each year or submit an application for a fee 
waiver and related paperwork to the Bureau of Land Management 
(BLM) by a filing deadline. If claimholders fail to do so they 
forfeit the claim. S. 884 would direct BLM to reinstate the 
forfeited mining claims of four claimholders in Alaska if those 
claimholders retroactively submit paperwork and pay fees. CBO 
estimates that any costs incurred by BLM to manage the 
reinstated claims would be insignificant and would be offset by 
the fees for that paperwork; thus, the net effect on spending 
subject to appropriation would be negligible.
    Enacting S. 884 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 884 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 884 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 884. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 884, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 884, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The testimony provided by the Department of the Interior at 
the July 26, 2017, hearing on S. 884 follows:

    Testimony of John Ruhs, Acting Deputy Director, Bureau of Land 
                 Management Department of the Interior

    Thank you for the opportunity to testify today on S. 884. 
In communities across the country, hardrock mining provides 
jobs, supports a diverse and vital economy, and brings 
important commodities to market that are essential to 
maintaining a high quality of life for all Americans. The 
public lands are a significant source of these mineral 
resources, and mineral development is an important land use 
within the Bureau of Land Management's (BLM's) multiple-use 
mandate. The Department of the Interior (Department) greatly 
appreciates the work of Chairman Murkowski and the Subcommittee 
in support of environmentally-responsible mineral development 
from the nation's public lands.
    S. 884 would require the BLM to allow mining claimants a 
chance to ``cure'' their failure to meet certain required 
filing deadlines. The bill would also give private relief to a 
small number of mining claimants whose mining claims have been 
deemed abandoned for failure to comply with applicable laws and 
regulations. The BLM appreciates the sponsor's work on this 
legislation and supports S. 884's goal of providing flexibility 
to small miners who have missed their filing deadlines. The BLM 
would welcome the opportunity to work with the sponsor and the 
Subcommittee on language to clarify the legislation and promote 
accountability.


                               background


    The Omnibus Budget Reconciliation Act of 1993 (maintenance 
fee statute) established an annual maintenance fee for 
unpatented mining claims, mill sites, and tunnel sites. This 
annual maintenance fee is currently set by regulation at $155 
per lode mining claim or site and $155 per every 20 acres or 
portion thereof for a placer claim. The maintenance fee statute 
also gave the Secretary of the Interior (Secretary) the 
discretion to waive the annual maintenance fee for certain 
``small miners''-mining claimants who hold 10 or fewer claims 
or sites.
    Following the enactment of the maintenance fee statute, the 
Department promulgated regulations that exercised the 
Secretary's discretion to allow the maintenance fee waiver for 
``small miners.'' These regulations state that in order to 
qualify for the waiver under the maintenance fee statute, the 
mining claimant must, among other things, file a maintenance 
fee waiver certification that certifies he and all related 
parties hold 10 or fewer mining claims or sites. Under the 
original regulations, the deadline for filing the maintenance 
fee waiver certification for the upcoming assessment year was 
August 31, which was the same day as the statutory deadline for 
filing annual maintenance fees. When Congress changed the 
statutory annual maintenance fee deadline to September 1, the 
Department changed the deadline for maintenance fee waiver 
certifications to also be September 1 for the coming assessment 
year. The Secretary's decision to make the regulatory deadline 
for filing maintenance fee waiver certifications the same as 
the statutory deadline for paying annual mining claim 
maintenance fees took into consideration the statutory 
constraint that maintenance fee waivers could not legally or 
practically be sought any later than the deadline for the 
maintenance fee itself.
    Unlike mining claimants who pay the annual maintenance fee, 
mining claimants who file maintenance fee waiver certifications 
are not exempt from the annual filing requirements in section 
314 of the Federal Land Policy and Management Act (FLPMA). As 
such, mining claimants who file maintenance fee waivers 
certifications must also submit an annual filing-either an 
affidavit that they have done sufficient work on their claim in 
lieu of the maintenance fee, or a notice of intention to hold-
on or before December 30, following the submission of the 
waiver and after the close of the assessment year for which a 
waiver was sought. Failure to submit either the waiver 
certification or the required filing under FLPMA results in 
forfeiture or abandonment of the mining claim by operation of 
law.
    When Congress amended the maintenance fee statute in 1998 
to change the filing deadline from August 31 to September 1, as 
noted above, it also amended the maintenance fee statute to 
allow mining claimants seeking a maintenance fee waiver to cure 
a ``defective'' waiver certification. The amendment required 
the BLM to give mining claimants filing timely ``defective'' 
maintenance fee waiver certifications notice of the defect and 
60 days from the receipt of written notice to ``cure'' that 
defect or pay the annual maintenance fee due for the applicable 
assessment year. Failure of the mining claimant to cure the 
defect results in the forfeiture of the mining claim.


                                 s.884


    S.884 would amend the maintenance fee statute to allow 
mining claimants an opportunity to ``cure'' a defective 
maintenance fee waiver certification for any reason, including 
if the claimant failed to timely file the waiver. As under the 
current statute, mining claimants would have 60 days from the 
receipt of written notice to correct that defect or pay the 
applicable maintenance fee. The bill would also provide the 
same 60-day cure period for an untimely annual filing under 
section 314(a) of FLPMA. S.884 would also give private relief 
to certain mining claimants whose mining claims have been 
deemed abandoned for failure to comply with applicable laws and 
regulations. The BLM has concerns with the bill as written and 
would like to opportunity to work with the sponsor to better 
achieve the bill's goals.


                                analysis


Altering deadlines
    The BLM generally supports the goals in Sec. 1(a) that 
would allow miners flexibility when filing the small miner fee 
waiver. As written, the BLM has concerns with the proposed 
legislation, as it would effectively eliminate the September 1 
deadline in the maintenance fee statute as well as the annual 
filing deadlines in section 314(a) of FLPMA. Amending the 
maintenance fee statute and section 314 of FLPMA to make 
failure to timely file a curable defect would require the BLM 
to accept late filings after the deadline, no matter how late. 
This would shift the administrative review and notification to 
the BLM, increasing the cost of administering the mining law 
program. Further, it would enable a mining claimant to hold the 
mining claims or sites in suspense until the BLM is able to 
identify the deficiency and notify the mining claimant. This 
would effectively extend the applicable deadlines by removing 
any penalty for failing to comply in a timely manner. In an 
effort to limit the administrative burden, and hold miners 
accountable to timely pay the maintenance fee or file a timely 
maintenance fee waiver, the BLM would like to work with the 
sponsor on language to provide limitations on the number of 
times a small miner can have an untimely filing or perhaps 
institute a monetary fee associated with it.
Curing defective waivers
    Under Sec. 1(a) of S. 884, if a mining claimant files 
either an untimely maintenance fee payment, an untimely 
maintenance fee waiver certification, or fails to make any 
filing at all, including a maintenance fee payment, the BLM 
would no longer be able to simply declare the mining claim or 
site void by operation of law, as authorized under the current 
maintenance fee statute since 1994. Rather, under this new 
provision, if any mining claimant fails to pay the annual 
maintenance fee or file a maintenance fee waiver certification 
by the deadline, the BLM would have to first determine whether 
each mining claimant qualifies as a ``small miner'' and, if so, 
would have to give notice and opportunity to cure-whether or 
not the mining claimant had any intention of paying the fee or 
filing a maintenance fee waiver certification. Moreover, 
because the BLM would have no way to determine if a mining 
claimant who qualified as a ``small miner'' had simply decided 
not to pay the fee or file the maintenance fee waiver 
certification and intentionally relinquish their mining claims, 
the BLM would have to send a ``defect'' notice to all such 
mining claimants who fail to either timely pay their 
maintenance fees or timely file a maintenance fee waiver 
certification and give them the opportunity to cure.
    Similar considerations apply with respect to the provisions 
in S. 884 that allow mining claimants an opportunity to 
``cure'' defective annual filings under section 314 of FLPMA. 
In addition, the amendments to FLPMA need clarification for 
other reasons. Section 1(a) of the proposed legislation 
purports to limit the opportunity to ``cure'' only to ``an 
affidavit of annual labor'' and only where ``associated with 
the application.'' However, section 1(c) amends section 314 of 
FLPMA to extend the opportunity to ``cure'' to all required 
annual filings under section 314(a), regardless of whether it 
is an affidavit of annual assessment work, and regardless of 
whether it is associated with a maintenance fee waiver 
certification. These provisions appear to be potentially 
contradictory, and we would like the opportunity to work with 
the sponsor to clarify these requirements.
Covered claimholder
    The mining claims described under Section 1(b) belonged to 
several different claimants in Alaska. Section 1(b) would give 
the mining claimants the opportunity to ``cure'' the defects 
that led to their mining claims being declared abandoned and 
void, consistent with the amendments to the maintenance fee 
statute and section 314 of FLPMA that are proposed here.
    The first ``covered claimholder'' (for mining claims 
AA023149, AA023163, AA047913, AA047914, AA047915, AA047916, 
AA047917, AA047918, and AA047919) is from Girdwood, Alaska. The 
mining claimant held nine mining claims located in the Chugach 
National Forest in southeastern Alaska. The BLM determined 
these mining claims to be statutorily abandoned in January 2005 
when the mining claimant failed to file annual assessment work 
documents in accordance with FLPMA, and the Interior Board of 
Land Appeals (IBLA) subsequently upheld the BLM's decision to 
declare these mining claims null and void.
    Finally, as the legislation is currently written, the BLM 
could not verify the remaining mining claim serial numbers 
identified in the bill. We would like to work with the sponsor 
to ensure that the bill text accurately identifies the mining 
claim serial numbers associated with the ``covered 
claimholders'' to whom this bill is seeking to provide relief. 
The BLM would welcome the opportunity to work with the sponsor 
on ways the Department can better serve the hardrock mining 
community.


                               conclusion


    Thank you again for the opportunity to testify on S. 884. I 
would be glad to answer your questions.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill as ordered 
reported.