Advance Notice of Proposed Rulemaking Regarding a Competitive Process for Leasing Public Lands for Solar and Wind Energy Development, 81906-81908 [2011-33429]
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Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules
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.
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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.
1 The OIG Semiannual Report to Congress can be
accessed through the OIG Web site at https://
oig.hhs.gov/publications/semiannual.asp.
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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
Bureau of Land Management.
Advance notice of proposed
rulemaking.
AGENCY:
ACTION:
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: https://
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
SUMMARY:
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Sfmt 4702
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
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Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules
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.
wreier-aviles on DSK3TPTVN1PROD with PROPOSALS
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
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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
(https://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
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Sfmt 4702
81907
Supplement to the Draft Solar PEIS
published on October 28, 2011 (https://
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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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.
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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
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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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]]>Agencies
[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Proposed Rules]
[Pages 81906-81908]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33429]
=======================================================================
-----------------------------------------------------------------------
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: https://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
[[Page 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 (https://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 (https://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
[[Page 81908]]
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). Multiple-factor 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 fixed-term 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
