[Federal Register Volume 89, Number 56 (Thursday, March 21, 2024)]
[Proposed Rules]
[Pages 20148-20150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06035]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Part 801


Review and Approval of Projects

AGENCY: Susquehanna River Basin Commission.

ACTION: Notice of proposed rulemaking; notice of public hearing.

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SUMMARY: This document contains proposed rules that would amend the 
regulations of the Susquehanna River Basin Commission (Commission) to 
provide rules for agency procurement and bid protest procedures. This 
rulemaking also updates the general policies of the Commission to 
include climate change and environmental justice, revises the 
procedures regarding the adoption of the comprehensive plan and adds 
language memorializing the Commission's Dry Cooling Resolution. These 
rules are designed to clarify the Commission's existing authorities to 
manage the water resources of the basin and provide transparency and 
accountability procedures to the Commission's public procurement 
practices.

DATES: Comments on the proposed rulemaking may be submitted to the 
Commission on or before May 13, 2024. The Commission has scheduled a 
public hearing on the proposed rulemaking to be held by in person and 
by telephone on May 2, 2024. The location of the public hearing is 
listed in the ADDRESSES section of this document.

ADDRESSES: Comments may be mailed to: Jason E. Oyler, Esq., General 
Counsel, Susquehanna River Basin Commission, 4423 N Front Street, 
Harrisburg, PA 17110-1788, or emailed to [email protected]. This 
public hearing will be conducted in person and by telephone. You may 
attend in person at Susquehanna River Basin Commission, 4423 N Front 
St., Harrisburg, Pennsylvania, or join by telephone at Toll-Free Number 
1-877-304-9269 and then enter the guest passcode 2619070 followed by #. 
Those wishing to testify are asked to notify the Commission in advance, 
if possible, at the regular or electronic addresses given below.

FOR FURTHER INFORMATION CONTACT: Jason E. Oyler, Esq., General Counsel, 
telephone: 717-238-0423, ext. 1312; fax: 717-238-2436; email: 
[email protected]. Also, for further information on the proposed 
rulemaking, visit the Commission's website at http://www.srbc.net.

SUPPLEMENTARY INFORMATION: The Commission is proposing revisions to 
Part 801 to add rules for agency procurement and bid protest procedures 
and amend the existing rules to include climate change and 
environmental justice, to revise the procedures regarding the adoption 
of the comprehensive plan and to memorialize the Commission's Dry 
Cooling Resolution.

Addition of Sec.  801.15 Commission Procurement Procedures; Protests

    The Commission, as an independent compact agency, is not subject to 
any of its member jurisdictions' laws regarding public procurement. The 
Susquehanna River Basin Compact provides the rules governing purchasing 
by the Commission in Section 15.9. The Compact also provides the 
Commission the ability to provide for the internal organization and 
administration of the Commission (Section 15.1(b)(3)) and to make rules 
and regulations to effectuate the Compact (Section 15.2).
    As a companion to this rulemaking, the Commission is also seeking 
comment on a proposed policy entitled ``SRBC Procurement Procedures'' 
that outlines the details and procedures related to the purchasing and 
procurement of goods and services by the Commission. The adoption and 
any revisions to this policy shall be consistent with Sec.  15.9 of the 
Compact and undertaken in accordance with appropriate public notice and 
comment consistent with the requirements of 18 CFR 808.1(b).
    The goal of the rulemaking is to provide more transparency to the 
Commission's procurement process as well as to establish a bid protest 
procedure. The proposed rule provides that a protest must be filed with 
the Commission within ten calendar days after the aggrieved protestant 
knew or should have known of the facts giving rise to the protest. In 
no event may a protest be filed later than ten calendar days after the 
date the contract was awarded. These time frames differ from the 30 day 
appeal period for other administrative appeals in 18 CFR 808.2, but are 
generally in line with the bid protest timelines of our member 
jurisdictions. The rule outlines the exclusive procedure for 
procurement protests before the Commission.

Other Changes Proposed to Part 801

    The proposed rulemaking also provides other changes to the existing 
Part 801 that the Commission deems beneficial. The Commission proposes 
to amend Sec.  801.2 to remove paragraph (b)(9) requiring periodic 
reports be submitted to the Commission as that practice no longer 
occurs. In its place, the Commission proposes to work with our member 
jurisdictions on actions that can be taken to improve climate 
resiliency and address environmental justice. This change reflects the 
additions of these critical issues to the Commission's adopted 2021-
2041 Comprehensive Plan.
    Additional changes are proposed to revise Sec.  801.5 related to 
the Comprehensive Plan. The process, presentation and layout for the 
adoption of the Comprehensive Plan has evolved since 1973. The proposed 
revisions more accurately reflect the modern process that was most 
recently used in 2021, but also are designed in a way that is meant to 
be more adaptable for future plan revisions and adoptions. Notably, the 
proposed process in Sec.  801.5(a)(4) will enable the list of projects 
approved by the Commission each quarter to be included in the 
Comprehensive Plan by their continual updating in the publicly 
available viewer application (currently the Water Application and 
Approval Viewer, or WAAV).
    Finally, the Commission proposes the addition of paragraph (d) to 
Sec.  801.12 related to electric power generation facilities. This new 
paragraph memorializes and elevates the Use of Dry Cooling Technology 
for Power Generation and Other Facilities, Commission Resolution No. 
2015-02 (Dry Cooling Resolution). The Dry Cooling Resolution has been 
instrumental in reducing the water consumption of new power plants in 
the basin. The Commission recognizes that an increasing number of power 
generation facilities, most recently combined cycle natural gas powered 
plants, are utilizing dry cooling technology to reduce the 
environmental footprint in the basin, and are demonstrating overall 
efficiencies in operations that are equivalent to wet cooling 
processes. Dry cooling technology significantly reduces the water 
demand of such facilities and

[[Page 20149]]

provides increased flexibility in siting facilities in proximity to 
fuel sources and electrical transmission lines. Use of dry cooling 
technology reduces impacts to aquatic ecosystems through the reduction 
of thermal impacts associated with large industrial volume discharges. 
The proposal would require consideration of dry cooling technologies to 
any new or significantly modified power generation facilities and an 
alternatives analysis to continue the consideration of water 
conservation technologies in an industry that is the largest 
consumptive user of water in the basin.

List of Subjects in 18 CFR Part 801

    Administrative practice and procedure, Water resources.

    Accordingly, for the reasons set forth in the preamble, the 
Susquehanna River Basin Commission proposes to amend 18 CFR part 801 as 
follows:

PART 801--GENERAL POLICIES

0
1. The authority citation for part 801 continues to read as follows:

    Authority:  Secs. 3.1, 3.4, 3.5(1), 15.1 and 15.2, Pub. L. 91-
575 (84 Stat. 1509 et seq.)

0
2. Amend Sec.  801.2 by revising paragraph (b)(9) as follows:


Sec.  801.2   Coordination, cooperation, and intergovernmental 
relations.

* * * * *
    (b) * * *
    (9) Coordinate and cooperate with the appropriate agencies of a 
member jurisdiction on implementing actions to address resiliency in 
the face of changing climatic conditions and to support the aims of 
environmental justice.
0
3. Revise Sec.  801.5 to read as follows:


Sec.  801.5   Comprehensive plan.

    (a) The Compact requires that the Commission formulate and adopt a 
comprehensive plan for the immediate and long-range development and use 
of the water resources of the basin.
    (1) The plan will include existing and proposed public and private 
programs, projects, and facilities which are required, in the judgment 
of the Commission, to meet present and future water resources needs of 
the basin. Consideration shall be given to the effect of the plan, or 
any part of the plan, on the receiving waters of the Chesapeake Bay. 
The Commission shall consult with interested public bodies and public 
utilities and fully consider the findings and recommendations of the 
signatory parties, their various subdivisions and interested groups. 
Prior to adoption of the plan the Commission shall conduct at least one 
public hearing in each signatory State.
    (2) The plan will reflect consideration of multiple objectives, 
including economic growth; sustainable regional development and 
environmental resilience; coordinated study and consideration of water 
quantity and water quality and the nexus with existing and proposed 
land uses; and the promotion of cooperation and collaboration between 
all levels of government and non-governmental entities.
    (3) The Commission will strive to complete a comprehensive update 
of the comprehensive plan every 20 years. If adjustments are needed 
during the life span of the plan to address emergent priorities, goals, 
or objectives, the comprehensive plan will be revised in accordance 
with requirements of the Compact.
    (4) Projects requiring Commission review and approval will be 
included in the comprehensive plan after formal action is taken at 
Commission business meetings. Approved projects will be incorporated 
into the comprehensive plan and accessible via the Commission's Water 
Application and Approval Viewer or successor viewer applications.
    (b) The comprehensive plan shall provide for the immediate and 
long-range use, development, conservation, preservation, and management 
of the water resources of the basin. The plan will be presented in a 
form and order as determined by the Commission and shall include but 
not be limited to the following:
    (1) Statement of authority, purpose, objectives, and scope.
    (2) Identification of priorities, goals and objectives of the 
Commission.
    (3) Inventory of the basin's water resources and existing 
developments, projects and facilities.
    (4) Projection of immediate and long range water resources needs of 
the basin.
    (5) Outline of plan implementation measures.
    (6) Procedures for updating and modifying the plan.
    (7) Necessary appendices.
0
4. Amend Sec.  801.12 by adding paragraph (d) to read as follows:


Sec.  801.12   Electric power generation.

* * * * *
    (d) Project sponsors proposing new or significantly modified power 
generation plants in the basin shall consider the use of dry cooling 
technologies and submit to the Commission a rigorous alternatives 
analysis. This analysis shall include evaluation of the costs, 
benefits, trade-offs and drawbacks of various cooling and water 
conservation techniques, and a full evaluation of options for providing 
effective consumptive use mitigation.
0
5. Add Sec.  801.15 to read as follows:


Sec.  801.15   Commission Procurement Procedures; Protests.

    (a) Procedures. The Commission shall maintain a policy entitled 
``SRBC Procurement Procedures'' that outlines the details and 
procedures related to the purchasing and procurement of goods and 
services by the Commission. Any revisions to this policy shall be 
consistent with Sec.  15.9 of the Compact and undertaken in accordance 
with appropriate public notice and comment consistent with the 
requirements of Sec.  808.1.
    (b) Right to Protest. A bidder or offeror, a prospective bidder or 
offeror or a prospective contractor that is aggrieved in connection 
with the solicitation or award of a contract, may protest to the 
Commission in writing.
    (c) Filing of Protest. A protestant shall file the protest on a 
form and in a manner prescribed by the Commission. A protest shall be 
filed within ten calendar days after the aggrieved protestant knew or 
should have known of the facts giving rise to the protest, except that 
in no event may a protest be filed later than ten calendar days after 
the date the contract was awarded. The failure to file a timely protest 
shall be deemed as a waiver of the right to protest by any bidder or 
offeror, prospective bidder or offeror or a prospective contractor. 
Untimely filed protests shall be disregarded by the Commission. The 
Executive Director or his/her designee shall be the presiding officer 
to hear the bid protest. The awardee of the contract, if any, will be 
informed by the Commission of any bid protest that may affect the 
contract and the awardee may intervene as a party in any protest filed.
    (d) Contents of Protest. A protest shall state all the grounds upon 
which the protestant asserts the solicitation or award of the contract 
was improper. The protestant may submit with the protest any documents 
or information it deems relevant to the protest.
    (e) Response and Reply. Within 15 calendar days of receipt of a 
protest, the purchasing officer may submit to the presiding officer and 
the protestant a response to the protest, including any documents or 
information deemed relevant to the protest. The protestant may file a 
reply to the response within ten calendar days of the response.
    (f) Evaluation of Protest. The presiding officer shall review the 
protest

[[Page 20150]]

and any response or reply and may request and review such additional 
documents or information as they deem relevant to render a decision and 
may, at their sole discretion, conduct a hearing consistent with Sec.  
808.3. All parties will be provided with a reasonable opportunity to 
review and address any additional documents or information deemed 
relevant by the presiding officer to render a decision. Additional 
documents and information deemed relevant by the presiding officer will 
be included in the record.
    (g) Findings and Report. Upon completing an evaluation of the 
protest, the presiding officer shall prepare a report of their findings 
and recommendations based on the record. The report shall be served by 
electronic mail or certified mail upon each party to the proceeding. 
Any party may file objections to the report. Such objections to the 
report shall be filed with the Commission and served on all parties 
within 20 calendar days after service of the report. A brief shall be 
filed together with the objections. Any replies to the objections and 
briefs will be filed and served on all parties within ten calendar days 
of service of the objections. Prior to its decision on such objections, 
the Commission may, in its sole discretion, grant a request for oral 
argument.
    (h) Action by the Commission. The Commission will review the 
findings and recommendations of the presiding officer and the 
objections and render a determination. The Commission's determination 
will be in writing and will be served by electronic or certified mail 
upon each party to the proceeding.
    (i) Appeal. Any final action by the Commission may be appealed to 
the appropriate United States District Court within 90 days as set 
forth in Sec.  3.10(6) and Federal reservation (o) of the Compact.
    (j) Record of Determination. The Commission's record of 
determination for review by the court shall consist of the 
solicitation; the contract, if any; the administrative record of the 
protest before the presiding officer; the report of the presiding 
officer, along with any objections and replies filed; transcripts and 
exhibits, if any; and the final determination of the Board of 
Commissioners.
    (k) Stay of Procurement During Pendency of Protest. In the event a 
protest is filed timely under this section, the purchasing officer 
shall not proceed further with the solicitation or with the award of 
the contract unless and until the Executive Director makes a written 
determination that the protest is clearly without merit, or that award 
of the contract without delay is necessary to protect substantial 
interests of the Commission, or until the Commission enters a final 
determination under paragraph (h) of this section.
    (l) Exclusive Procedure. This section shall be the exclusive 
procedure for protesting a solicitation or award of a contract by a 
bidder or offeror, a prospective bidder or offeror or a prospective 
contractor that is aggrieved in connection with the solicitation or 
award of a contract by the Commission.

    Dated: March 18, 2024.
Jason E. Oyler,
Secretary to the Commission.
[FR Doc. 2024-06035 Filed 3-20-24; 8:45 am]
BILLING CODE 7040-01-P