[Senate Report 115-364]
[From the U.S. Government Publishing Office]
Calendar No. 651
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.