81906 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules 

1The OIG Semiannual Report to Congress can be 

accessed through the OIG Web site at http:// 

oig.hhs.gov/publications/semiannual.asp. 

Appendix F.1 OIG is not seeking 

additional public comment on the 

proposals listed in Appendix F at this 

time. Rather, this notice seeks 

additional recommendations regarding 

the development of new or modified 

safe harbor regulations and new Special 

Fraud Alerts beyond those summarized 

in Appendix F. 

A detailed explanation of 

justifications for, or empirical data 

supporting, a suggestion for a safe 

harbor or Special Fraud Alert would be 

helpful and should, if possible, be 

included in any response to this 

solicitation. 

A. Criteria for Modifying and 

Establishing Safe Harbor Provisions 

In accordance with section 205 of 

HIPAA, we will consider a number of 

factors in reviewing proposals for new 

or modified safe harbor provisions, such 

as the extent to which the proposals 

would affect an increase or decrease in: 

• Access to health care services, 

• The quality of health care services, 

• Patient freedom of choice among 

health care providers, 

• Competition among health care 

providers, 

• The cost to Federal health care 

programs, 

• The potential overutilization of 

health care services, and 

• The ability of health care facilities 

to provide services in medically 

underserved areas or to medically 

underserved populations. 

In addition, we will also take into 

consideration other factors, including, 

for example, the existence (or 

nonexistence) of any potential financial 

benefit to health care professionals or 

providers that may take into account 

their decisions whether to (1) order a 

health care item or service or (2) arrange 

for a referral of health care items or 

services to a particular practitioner or 

provider. 

B. Criteria for Developing Special Fraud 

Alerts 

In determining whether to issue 

additional Special Fraud Alerts, we will 

consider whether, and to what extent, 

the practices that would be identified in 

a new Special Fraud Alert may result in 

any of the consequences set forth above, 

as well as the volume and frequency of 

the conduct that would be identified in 

the Special Fraud Alert. 

Dated: December 22, 2011. 

Daniel R. Levinson, 

Inspector General. 

[FR Doc. 2011–33345 Filed 12–28–11; 8:45 am] 

BILLING CODE 4152–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 2800 

[WO–300–1430–PQ] 

RIN 1004–AE24 

Advance Notice of Proposed 

Rulemaking Regarding a Competitive 

Process for Leasing Public Lands for 

Solar and Wind Energy Development 

AGENCY: Bureau of Land Management. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The Bureau of Land 

Management (BLM) is issuing this 

Advance Notice of Proposed 

Rulemaking (ANPR) to solicit public 

comments and suggestions that will be 

used in preparing a proposed rule to 

establish a competitive process for 

leasing public lands for solar and wind 

energy development. 

DATES: The BLM will accept comments 

and suggestions on the ANPR until 

February 27, 2012. 

ADDRESSES: You may submit comments 

by any of the following methods: 

Mail: Director (630) Bureau of Land 

Management, U.S. Department of the 

Interior, Room 2134LM, 1849 C St. NW., 

Washington, DC 20240, Attention: 

1004–AE24. 

Personal or messenger delivery: U.S. 

Department of the Interior, Bureau of 

Land Management, 20 M Street SE., 

Room 2134LM, Attention: Regulatory 

Affairs, Washington, DC 20003. 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions at this Web site. 

FOR FURTHER INFORMATION CONTACT: Ray 

Brady at (202) 912–7312 or Linda 

Resseguie at (202) 912–7337 regarding 

the substance of this ANPR. For 

information on procedural matters or 

the rulemaking process generally, you 

may contact Joseph Berry at (202) 912– 

7442. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 1–(800) 877– 

8339, 24 hours a day, seven days a week 

to contact the above individuals. 

SUPPLEMENTARY INFORMATION: In order to 

foster the growth and development of 

the renewable energy sector of the 

economy and to administer the public 

lands in a more orderly manner, the 

BLM believes that a rulemaking is 

needed to enhance the Agency’s ability 

to establish an efficient competitive 

process for issuing Right-of-Way (ROW) 

leases for solar and wind energy 

development that is based upon the 

Agency’s authority under the Federal 

Land Policy and Management Act 

(FLPMA) (43 U.S.C. 1701 et seq.). 

The BLM believes that a competitive 

process would enhance its ability to 

capture fair market value for the use of 

public lands, as required under Section 

504(g) of FLPMA (43 U.S.C. 1764(g)), 

and ensure fair access to leasing 

opportunities for renewable energy 

development. This rulemaking would 

establish competitive bidding 

procedures for lands within designated 

solar and wind energy development 

leasing areas, define qualifications for 

potential bidders, and structure the 

financial arrangements necessary for the 

process. 

The purpose of this ANPR is to solicit 

public comments that will be helpful to 

the BLM in preparing a subsequent 

proposed rule, as well as to gather the 

input that is needed to develop an 

efficient competitive process for ROW 

leasing. The scope of the proposed rule 

will include existing BLM wind and 

solar policies and guidelines, and terms 

and conditions of lease authorizations 

as well as the competitive process. 

To help the BLM prepare the 

proposed rule, the Agency is seeking 

public comments and suggestions on the 

scope of the competitive process. See 

section III of this ANPR for a list of 

specific questions relating to this topic. 

I. Public Comment Procedures 

Commenting on the ANPR 

Written comments and suggestions 

should: 

—Be specific; 

—Explain the reasoning behind your 

comments and suggestions; and 

—Address the issues outlined in the 

ANPR. 

For comments and suggestions to be 

the most useful, and most likely to 

inform decisions on the content of the 

proposed rule, they should: 

—Be substantive; and 

—Facilitate the development and 

implementation of an 

environmentally and fiscally 

responsible process for leasing public 

lands for solar and wind energy 

development. 

The BLM is particularly interested in 

receiving comments and suggestions in 

response to the questions listed in 


wreier-aviles on DSK3TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules 81907 

section III of this ANPR. These specific 

questions will focus the feedback on 

matters most in need of public input for 

the development of the regulations. This 

public input will assist the BLM in 

creating a fair and workable competitive 

process. All communications on these 

topics should refer to RIN 1004–AE24 

and may be submitted by the methods 

listed under the ADDRESSES section of 

this ANPR. 

Comments received after the close of 

the comment period (see DATES section 

of this ANPR) may not necessarily be 

considered or included in the 

Administrative Record for the proposed 

rule. Likewise, comments delivered to 

an address other than those listed under 

the ADDRESSES section of this ANPR 

may not necessarily be considered or 

included in the Administrative Record 

for the proposed rule. 

Reviewing Comments Submitted by 

Others 

Comments, including names and 

street addresses of respondents, will be 

available for public review at the 

personal or messenger delivery address 

listed under ADDRESSES, during regular 

business hours (7:45 a.m. to 4:15 p.m.), 

Monday through Friday, except 

holidays. Individual respondents may 

request confidentiality, which will be 

honored to the extent allowable by law. 

Those wishing to withhold their name 

or address (except for the city or town) 

must state this request prominently at 

the beginning of their comment, and 

state a reason for the request. 

Submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives or officials of 

organizations or businesses, will be 

made available for public inspection in 

their entirety. 

II. Background 

Congress has directed the Department 

of the Interior (Department) to facilitate 

the development of renewable energy 

resources. In Section 211 of the Energy 

Policy Act of 2005 (EPAct), Congress 

declared that before 2015, the Secretary 

of the Interior (Secretary) should seek to 

have approved non-hydropower 

renewable energy projects (solar, wind, 

and geothermal) on public lands with a 

total combined generation capacity of at 

least 10,000 megawatts of electricity. 

Since passage of the EPAct, the 

Secretary has issued several orders that 

emphasize the importance of renewable 

energy development on public lands 

and the Department’s efforts to achieve 

the goal Congress established in Section 

211 of the EPAct. The most recent 

Secretarial Order 3285A1, ‘‘Renewable 

Energy Development by the Department 

of the Interior,’’ was issued in February 

2010 by Secretary Ken Salazar. The 

Order established the development of 

renewable energy on public lands as one 

of the Department’s highest priorities. 

The FLPMA provides comprehensive 

authority and guidelines for the 

administration and protection of the 

public lands and their resources, and 

directs that the public lands be managed 

‘‘on the basis of multiple use and 

sustained yield’’ (43 U.S.C. 1701(a)(7)). 

One of the principal or major uses 

defined by FLPMA includes the 

issuance of ROWs on public lands. The 

FLPMA also mandates that ‘‘the United 

States receive fair market value of the 

use of the public lands and their 

resources unless otherwise provided for 

by statute’’ (43 U.S.C. 1701(a)(9)). 

Competitive Right-of-Way Procedures 

Title V of FLPMA authorizes the BLM 

to issue ROWs for electric generation 

systems on the public lands (including 

solar and wind energy generation 

systems). Title V includes the authority 

to issue a ROW easement, lease, permit, 

or license as defined by Section 103(f) 

of FLPMA. 

In June 2005, the BLM completed the 

Final Programmatic Environmental 

Impact Statement (PEIS) on Wind 

Energy Development relating to the 

authorization of wind energy projects on 

public lands. This Final PEIS provided 

an analysis of the environmental impact 

of the development of wind energy 

projects on public lands in the West and 

identified approximately 20.6 million 

acres of BLM public lands with wind 

energy development potential. However, 

the Final PEIS did not identify wind 

energy development leasing areas. 

On December 17, 2010, the 

Department of the Interior and the 

Department of Energy as co-lead 

agencies published the Draft PEIS for 

Solar Energy Development in Six 

Southwestern States. The Draft Solar 

PEIS assessed the environmental, social, 

and economic impacts associated with 

solar energy development on public 

lands in Arizona, California, Colorado, 

Nevada, New Mexico, and Utah 

(http://solareis.anl.gov). Under the 

Preferred Alternative identified in the 

Draft Solar PEIS, the BLM would 

establish Solar Energy Zones (SEZs), 

which are areas that have been 

identified as the most appropriate for 

development because they contain the 

highest solar energy potential and 

fewest environmental and resource 

conflicts. The BLM included in the Draft 

Solar PEIS an option to offer lands 

within SEZs on a competitive basis. 

This option is further discussed in the 

Supplement to the Draft Solar PEIS 

published on October 28, 2011 (http:// 

solareis.anl.gov). The designation of any 

SEZs for solar development would be 

made final upon the approval of a 

Record of Decision, following 

completion of a final EIS. Additional 

solar energy development leasing areas 

could also be identified and designated 

in the future through other BLM land 

use planning efforts. 

The FLPMA does not limit the term 

of a solar or wind energy ROW lease. In 

accordance with Title V of FLPMA and 

the BLM’s existing ROW regulations, a 

solar or wind energy ROW authorization 

is limited to a ‘‘reasonable term’’ (43 

U.S.C. 1764(b) and 43 CFR 2805.11(b)). 

The regulations further articulate a 

number of factors that the BLM 

considers in determining a reasonable 

term, including the overall costs and 

useful life of the project. Most major 

ROW authorizations also include 

provisions for renewal of the 

authorization consistent with the 

provisions of the existing regulations 

(43 CFR 2805.15(d) and 2807.22). The 

BLM has established policies related to 

terms for current solar and wind energy 

authorizations, but it believes a rule 

would help further clarify the term of 

solar and wind energy leasing. 

Due to the substantial investments 

required for typical solar or wind energy 

projects and the projected life of these 

facilities (generally in excess of 20 

years), it is in the public interest to 

provide for a term for solar or wind 

energy ROW leases that would allow a 

reasonable period of time for 

construction, development, and 

continued operations of sufficient 

duration to make projects economically 

feasible. In addition, many Power 

Purchase Agreements (PPAs) for the 

purchase of electricity generated from 

solar or wind energy facilities are for 

terms of 20 years or longer. The BLM 

currently issues all solar energy ROW 

authorizations for a term not to exceed 

30 years. A wind energy development 

authorization is generally for a term of 

25–30 years. 

The existing ROW regulations (43 

CFR 2804.23) provide authority for 

conducting a competitive process but 

only to resolve competing applications 

for the same facility or system. For 

public lands outside of designated solar 

or wind energy development leasing 

areas, the BLM expects to continue to 

use this existing regulatory authority. 

The BLM believes a rulemaking 

would help to establish a more 

comprehensive and efficient 

competitive process for public lands 

with designated solar and wind energy 

development leasing areas. This 


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81908 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules 

rulemaking would provide the authority 

to offer lands through a nomination and 

competitive process instead of simply 

through an application process. The 

new regulations could include the 

following provisions for leasing within 

designated solar or wind energy 

development leasing areas. 

• Call for Nominations. A call for 

nominations would be published to 

solicit expressions of interest for parcels 

of land within designated solar or wind 

energy development leasing areas. 

Nomination of a specific parcel would 

require payment of a nomination fee to 

be determined by the regulations. 

(Section 304 of FLPMA provides 

authority to the BLM to establish 

reasonable filing fees.) 

• Review of Nominations. The BLM 

would review the nominations to 

identify parcels of land within 

designated solar or wind energy 

development leasing areas that are 

suitable to be offered competitively and 

then complete the work necessary, 

including the National Environmental 

Policy Act (NEPA) and other required 

reviews, to prepare the selected parcels 

for the competitive offer. At this lease 

stage, the NEPA analysis for parcels 

would likely tier to the Final Solar PEIS, 

once it is published, and the BLM’s 

2005 Wind Energy Development PEIS. 

Because the 2005 Wind Energy 

Development PEIS and associated 

Record of Decision did not identify 

wind energy development leasing areas, 

the BLM would designate these areas 

before considering nominations for a 

competitive wind energy ROW leasing 

process. 

• Notice of Competitive Offer. A 

notice would be published at least 30 

days prior to the competitive offer. The 

notice would include a legal description 

of the lands involved, the process for 

conducting the competitive offer, a 

minimum bid requirement, the 

qualifications for potential bidders, and 

the due diligence requirements for the 

successful bidder to submit a Plan of 

Development (POD) for the lands 

involved in the competitive offer. The 

POD defines the specific development 

plans of the lease holder. 

• Bonus Bid Competitive Process or 

Other Competitive Procedures. A variety 

of competitive bid procedures could be 

defined by the new regulations. These 

competitive procedures could include 

sealed bids, oral auctions or ascending 

bidding, two-stage (combination of 

sealed and oral auctions) bidding, or 

multiple-factor bidding methods. 

Multiple-factor bidding could include 

monetary or nonmonetary factors and 

could be structured similarly to the 

method that the Bureau of Ocean Energy 

Management provides for offshore wind 

leasing (30 CFR 285.220). Multiplefactor variables for competitive wind 

and solar could include, but are not 

limited to, qualified bidder or other fees, 

variable cash bonuses, technical merit of 

the applicant, timeliness, financing and 

economics, environmental impact, and 

public benefits. Bonus bids would be 

deposited into the U.S. Treasury. The 

bonus bid from the successful bidder 

would be nonrefundable. All other bids 

would be returned. The new regulations 

could define a fee structure and 

determine whether particular fees might 

be deposited into the Treasury or be 

used to reimburse the BLM for 

administrative and other costs. 

• Issuance of Competitive ROW 

Leases. A ROW lease would be issued 

to the successful bidder. The successful 

bidder would be required to submit a 

POD within the timeframes specified in 

the Notice of Competitive Offer and to 

pay cost recovery fees for review and 

approval of the POD. The review and 

approval process for the POD would 

require compliance with the NEPA and 

other Federal laws and regulations. 

• Administration of Competitive 

ROW Leases. To reduce uncertainty 

about future changes in the terms and 

conditions of the lease, the competitive 

ROW lease could be a 30-year fixedterm lease, with specific terms and 

conditions, and be available for renewal. 

In order to facilitate the efficient 

development of solar and wind energy 

within designated energy development 

leasing areas, the BLM would include a 

requirement in each ROW lease that the 

holder submit a POD within a specified 

period of time and begin construction 

within the approved timeframes. Each 

ROW lease would also include terms 

and conditions requiring the holder to 

maintain all facilities in accordance 

with the design standards in the 

approved POD. There are no specific 

provisions in the existing regulations 

regarding such diligent development 

requirements and the BLM believes a 

rule would help further define the due 

diligence development requirements for 

competitive solar and wind energy 

leases. 

The BLM also would require that a 

minimum performance bond be 

provided for all competitive solar and 

wind energy ROW leases to ensure 

compliance with the provisions of the 

regulations and the terms and 

conditions of the lease. The BLM 

believes a rule would be appropriate for 

defining the performance bonding 

requirements for competitive solar and 

wind energy leases. 

III. Description of the Information 

Requested 

The BLM is particularly interested in 

receiving comments on the following 

questions relating to regulations for a 

competitive process for solar and wind 

energy development on the public 

lands: 

1. How should a competitive process 

be structured for leasing lands within 

designated solar or wind energy 

development leasing areas? 

2. Should a competitive leasing 

process be implemented for public 

lands outside of designated solar or 

wind energy development leasing areas? 

If so, how should such a competitive 

leasing process be structured? 

3. What competitive bidding 

procedures should the BLM adopt? 

4. What is the appropriate term for a 

competitive solar energy ROW lease? 

5. What is the appropriate term for a 

competitive wind energy ROW lease? 

6. Should nomination fees be 

established for the competitive process? 

If so, how should the fees be 

determined? 

7. How should the bidding process for 

competitive solar and wind energy ROW 

leases be structured to ensure receipt of 

fair market value? 

8. Should a standard performance 

bond be required for competitive solar 

and wind energy ROW leases and how 

should the bond amount be determined? 

9. What diligent development 

requirements should be included in 

competitive solar and wind energy ROW 

leases? 

The BLM is also interested in 

receiving any other comments regarding 

the content and structure of the 

competitive process for solar and wind 

energy development. Because this 

discussion is specifically focused on the 

development of the competitive process, 

comments are not being requested 

regarding solar or wind energy 

environmental issues. 

Marcilynn A. Burke, 

Acting Assistant Secretary of the Interior, 

Land and Minerals Management. 

[FR Doc. 2011–33429 Filed 12–28–11; 8:45 am] 

BILLING CODE 4310–84–P 


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