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Notice of Proposed Rulemaking & Public Hearing: Amendments to the Commission's Rules of Practice and Procedure
Proposal: Key Information

The comment period on this proposed rulemaking is now closed.

The Commission proposes to amend its Rules of Practice and Procedure (RPP) to:

  • Resolve ambiguities around the automatic termination of project approvals issued by the Commission and make conforming amendments to related provisions as appropriate;

  • Update the Commission's Water Resources Program and Project Review procedures to better conform them to current practice;

  • Remove references to the Federal Freedom of Information Act that create confusion about the regulations applicable to requests for Commission public records; and

  • Align pronouns with the Commission's policies regarding diversity, inclusion and belonging.

Public Hearing Dates

  • November 13, 2023, 1:30 p.m. to no later than 4 p.m.

  • November 13, 2023, 6:30 p.m. to no later than 9 p.m.

Written Comments

Proposal Documents
Public Hearing Information

The DRBC conducted two virtual public hearings to collect public testimony on this proposed rulemaking to amend its Rules of Practice and Procedure.

To Attend the Public Hearings

  • November 13, 2023, 1:30 p.m. to no later than 4 p.m.
    • Please Note! The Commission regrets that technical difficulties prevented DRBC from livestreaming its November 13, 2023, 1:30 p.m. public hearing on Proposed Amendments to the Commission's Rules of Practice and Procedure. A full recording of the informational briefing by Commission staff and public hearing was made available after the public hearing until the close of the comment period at 5 p.m. on November 30.

    • Register for the 1:30 p.m. Zoom Webinar - folks were asked to register for the hearing at this link

      • To attend the public hearing on Zoom, you must register for the Zoom Webinar.

    • Watch the livestream of either hearing on the DRBC's YouTube channel: http://www.youtube.com/user/delrivbasincomm/

        • No registration is required to attend via the YouTube livestream.

  • November 13, 2023, 6:30 p.m. to no later than 9 p.m.
    • Please Note! The Commission regrets that technical difficulties prevented DRBC from livestreaming its November 13, 2023, 6:30 p.m. public hearing on Proposed Amendments to the Commission's Rules of Practice and Procedure. A full recording of the informational briefing by Commission staff and public hearing was made available after the public hearing until the close of the comment period at 5 p.m. on November 30.

    • Register for the 6:30 p.m. Zoom Webinar - folks were asked to register for the hearing at this link

      • To attend the public hearing on Zoom, you must register for the Zoom Webinar.

    • Watch the livestream of either hearing on the DRBC's YouTube channel: http://www.youtube.com/user/delrivbasincomm/

      • No registration is required to attend via the YouTube livestream.

To Provide Testimony at a Public Hearing

After registering for the Zoom Webinar you wish to attend, sign up to speak at that public hearing by registering through Eventbrite by 5 p.m., Friday, November 10, 2023.

Public Hearing Procedures

  • Attendance at the hearings is not limited. However, to eliminate uncertainty on the part of attendees about whether they will have an opportunity to provide oral comment, those who wish to speak at a hearing must register in advance to do so. Online registration to speak at the public hearings will remain open until 5 p.m., Friday, November 10, 2023, or until all available speaking slots have been filled, whichever is earlier.

  • Each person who wishes to provide oral comment may do so at only one public hearing. Registrations will be monitored, and if capacity is not adequate to accommodate all who wish to speak, additional opportunities may be added.

  • Speaking time will be limited to approximately three minutes per speaker.

  • Elected government officials and their staff will have the opportunity to identify themselves when registering to attend a hearing.

  • After all registered speakers have had an opportunity to be heard, and as time allows, the Commission may provide an opportunity for other webinar attendees to speak, even if they did not register to do so. At such time as all registered speakers in attendance have been heard, and any other webinar attendees who wish to avail themselves of the opportunity to speak (but who did not register to speak) have also been heard, the hearing officer will have discretion to close the hearing.

  • Written and oral comment will receive equal consideration.

  • To ensure a smooth connection, please make sure the most up-to-date version of Zoom is being used.
Written Comments

How to Submit Written Comments

Deadline to Submit Written Comments

  • 5 p.m. on Thursday, November 30, 2023

Please Note

  • All materials should be provided in searchable formats, preferably in .pdf searchable text. Notably, a picture scan of a document may not result in searchable text.

  • Comments received through any method other than the designated on-line method, including via email, fax, postal/delivery services or hand delivery, will not be considered or included in the rulemaking record unless accompanied by a written request for an exception based on lack of access to the web-based comment system. Such requests and accompanying materials may be sent to: Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 08628.

  • Written and oral comment will receive equal consideration.

Substance of Comments

  • The Commission welcomes and will consider comments that concern the potential impacts of the proposed amendments on the conservation, utilization, development, management and control of the water and related resources of the Delaware River Basin and on public participation in the Commission's water resource management activities.

  • Non-digitized, voluminous materials such as books, journals and collections of documents will not be accepted. Digital submissions of articles and websites must be accompanied by a statement containing citations to the specific findings or conclusions the commenter wishes to reference.
Supporting Documentation & Translation

Proposed Rulemaking Documents (all pdfs)

Translation Services for Rulemaking Materials

This DRBC web page can be translated to one of multiple languages by using the Google Translate widget located in the upper right of each web page.

The Commission will consider requests for translation of this notice and the proposed rule text into languages other than English. To request translation of documents related to this rulemaking, please send an e-mail to translate@drbc.gov. Please specify both the requested language and the requested documents.
Background & Summary of Proposed Amendments

Background

The Commission's Rules of Practice and Procedure (RPP), comprising part 401 of Title 18 of the Code of Federal Regulations, govern the adoption and revision of the Commission's Comprehensive Plan and Water Resources Program, the exercise of the Commission's authority pursuant to the provisions of Article 3.8 of the Delaware River Basin Compact (Compact) and other actions of the Commission mandated or authorized by the Compact, including but not limited to the administration of public access to records and information in the Commission's possession.

The proposed amendments are intended primarily to resolve ambiguities in the current language of paragraph (a) of § 401.41 ("Limitation of approval"); to replace certain out-of-date provisions, such as the requirement for paper copies of project review applications under Section 3.8 of the Compact, that no longer conform to current practice; and to eliminate references to the Federal Freedom of Information Act ("FOIA") in Subpart H—Public Access to Records and Information, because the Commission is not a Federal agency and because the Compact expressly exempts the Commission from the Federal Administrative Procedure Act, of which FOIA is a part. The changes proposed to § 401.41 create the need for conforming changes in four other provisions of Subpart C but do not alter the Commission's interpretation or implementation of these provisions.

Ambiguities in the language of paragraph (a) of § 401.41 came to light in 2022 in connection with a request in accordance with this provision for extension of an approval issued in 2019 under Section 3.8 of the Compact. The current provision states that a Commission approval "shall expire three years from the date of Commission action unless prior thereto the sponsor has expended substantial funds (in relation to the cost of the project) in reliance upon such approval." The provision further provides that "[a]n approval may be extended or renewed by the Commission upon application." The questions raised by this language include: whether, if the listed conditions are met, an expiring docket automatically extends or renews without the need for Commission action; whether, if acknowledgement or a decision is necessary, the Commission must vote on the matter or the Executive Director may issue the acknowledgment or render the decision; whether the project sponsor may be relieved of the requirement that it have "expended substantial funds" if circumstances beyond the sponsor's control have prevented it from doing so; whether public notice and a public hearing should be provided before an extension is acknowledged, approved or denied; and the duration of an extension if acknowledged or approved.

Summary of Proposed Amendments to the RPP

Amendments to § 401.41.

Proposed § 401.41(a).  Paragraph (a) of § 401.41 operates when the instrument of Commission approval contains no expiration date. This occurs when the Commission approves an activity such as dredging under Section 3.8 of the Compact and accompanying regulations at 18 CFR 401.35(a)(7) or construction under the Commission's Flood Plain Regulations, 18 CFR part 415. Because the Commission exercises no continuing oversight over dredging and construction activities, no renewal of an approval for such activities is ordinarily required. Section 401.41(a) serves as a backstop in the unusual instances in which the approved activity is not promptly undertaken. In contrast, approvals for ongoing withdrawals and discharges are issued for limited terms of ten and five years, respectively, as set forth in the instrument of approval. Under existing regulations, an application for renewal of an approval, when required, must be submitted no fewer than 120 days in advance of the assigned expiration date unless the instrument of approval provides otherwise. See 18 CFR 401.43(b)(4)(ii). (An amendment proposed in this rulemaking would change the required timing of submission to 180 days in advance of the assigned expiration date.) That paragraph (a) of § 401.41 operates only when an approval contains no expiration date is made explicit in the amended rule.

In addition, the proposed amendments extend from three years to five the time by which a Commission approval that lacks an expiration date "shall expire" if certain requirements are not met. In the Commission's view, a period of five years, rather than the current three, is appropriate given modern permitting and construction timeframes for Commission-approved projects. As noted above, five years is also the term of a Commission approval for a wastewater discharge, and is the term normally applied to individual permits issued under the Coastal Zone Management Rules established by an agency of one of the Commission's member states, the New Jersey Department of Environmental Protection ("NJDEP") (see N.J. Admin. Code Sec. 7.7-8.2).

Additional changes to § 401.41(a) are proposed to resolve ambiguities in the current language. Under the proposed revision, the project sponsor must submit a written request for an extension, accompanied by supporting documentation. In response, the Executive Director by a written determination must grant a five-year extension if the sponsor's request and supporting documentation demonstrate to the Executive Director's satisfaction that certain criteria are met. Specifically, the Executive Director must grant the extension if he or she determines: (1) that no material change is proposed to the project as approved; (2) that the sponsor has expended, at a minimum, the lesser of one million dollars or substantial funds in relation to the cost of the project or has been prevented from doing so by circumstances beyond the sponsor's control; and (3)-(4), that neither the Commission's Comprehensive Plan nor the condition of the project site has changed in a manner important to determining whether the project would substantially impair or conflict with the Comprehensive Plan. 

The term "material change" is proposed to be added to Subpart I—General Provisions, § 401.121 (Definitions), and defined as, "a change to a project previously approved by the Commission that is important in determining whether the project would substantially impair or conflict with the Commission's comprehensive plan." The proposed definition restates the purpose of the Commission's review as set forth in Article 3.8 of the Compact, which provides in relevant part that "[t]he commission shall approve a project whenever it finds and determines that such project would not substantially impair or conflict with the comprehensive plan and may modify and approve as modified, or may disapprove any such project whenever it finds and determines that the project would substantially impair or conflict with such plan."

As proposed, amended § 401.41(a) would also require public notice of a determination by the Executive Director on or before the Commission's next quarterly public hearing or business meeting. The proposed language establishes that determinations by the Executive Director under the provision are appealable in accordance with Subpart F—Administrative and Other Hearings, §§ 401.81 – 401.90.

Proposed § 401.41(b).  The proposed amendments include a new § 401.41(b), which makes clear that if one or more material changes to an approved project are proposed, or if the Executive Director determines that any one or more of the other criteria listed at proposed § 401.41(a) are not satisfied, the project sponsor must apply for renewal and modification of its approval in accordance with the customary application procedure for any docket renewal or approval issued by the Commission. This section applies to any Commission approval, whether or not it includes an expiration date, and regardless of whether the project sponsor has expended a minimum amount of funds in relation to the cost of a project (Existing § 401.43(b)(4)(iii) sets forth the fee associated with modification of a Commission approval).

Proposed § 401.41(c).  Proposed § 401.41(c) would effectively preserve the current § 401.41(b), which provides that a project review application (as opposed to a Commission approval) that remains dormant (defined by the rule as "no active pursuit of approvals") for three years from the date of Commission receipt of the application will terminate without further action by the Commission.

Conforming amendments in part 401. 

Introduction of the new defined term, "material change," creates the need to replace existing language with the new term in four other provisions of part 401. In each of these instances, the current language includes the undefined term "substantial change," or some variant of that term. The affected provisions are §§ 401.8(a), 401.42(e), 401.43(b)(1)(ii), and 401.43(b)(4)(iii).

Updates of subparts B and C.

The proposed amendments would revise provisions of the RPP concerning the Water Resources Program (subpart B) and the review of projects under Section 3.8 of the Compact (subpart C), to align them with current practice.

Period to be covered by the Water Resources Program.  Article 13.2 of the Compact requires the Commission to "annually adopt a water resources program, based upon the comprehensive plan, consisting of the projects and facilities which the commission proposes to be undertaken . . . during the ensuing six years or such other reasonably foreseeable period as the commission may determine." Currently, § 401.22 dictates that the Water Resources Program "will be a reasonably detailed amplification of that part of the Comprehensive Plan which the Commission recommends for action within the ensuing six-year period." The proposed revision would restore the flexibility the Compact allows regarding the period to be covered by the annual program. 

Information required for concurrent inclusion of a project in the Comprehensive Plan and Water Resources Program.  Section 401.23 establishes that a project may be added to the Comprehensive Plan and included in the Water Resources Program by concurrent action of the Commission, provided that in such instances the project sponsor has furnished the Commission with detailed information, a list of which is set forth in the provision. As amended, the list is replaced by a reference to § 401.4(b), which contains a list of the information that must be provided for any project proposed to be included in the Comprehensive Plan.

Removal of provisions concerning out-of-use classifications.  Sections 401.24–401.26 relate to a system of classifying projects included in the Water Resources Program as either "A" list or "B" list projects. Because this classification system is no longer in use, these sections are proposed to be deleted.

Time of referral of a project by a State or Federal agency.  The proposed amendments include a revision of § 401.38, captioned "Form of referral by State or Federal agency," to conform the language of this provision to current practice. In practice, the Commission reviews projects concurrently with reviews performed by the regulatory agencies of its member states and the Federal government. Accordingly, as proposed, § 401.38 provides that upon receipt of an application for a project that is subject to Commission review (rather than upon issuance of an approval as in the current rule), the member state agency will refer the application to the Commission.

Form of submission of a project review application.  The proposed rule would amend § 401.39, captioned "Form of submission of projects," to provide that for any project subject to review under Section 3.8 of the Compact, an application will be considered complete and ripe for technical review by Commission staff when the project sponsor submits a completed application using the form provided on the Commission's website and pays the applicable fee plus any outstanding fees, penalties or interest. The Commission's ability to request additional information from a project sponsor is preserved. The amendment would leave certain submission requirements and procedures to the instructions in the applicable form. It would conform § 401.39 to the practice already used by the Commission and most applicants, as well as by some regulatory agencies of the Commission's State and Federal members.

Timely submission of a renewal application.  The proposed amendments include the revision of paragraph § 401.43(b)(4)(ii) to provide that a project sponsor must file its application for renewal of an expiring approval 180 calendar days prior to the date of expiration of the approval to avoid a late fee. The current rule requires that to avoid a late fee, a renewal application must be filed 120 days prior to the date of expiration of the approval.  

Fees for name change and change of ownership.  The amendments are proposed to include consolidation into a single fee of the fees that currently apply, respectively, when the sponsor of a project undergoes a name change (§ 401.43(b)(4)(iv)) and when the project undergoes a change of ownership (§ 401.43(b)(4)(v)). A corresponding change is required to the accompanying Table 3 to § 401.43. The amendment is proposed because the two types of events entail comparable time and effort on the part of the Commission's project review staff.

Public Access to Records and Information

Subpart H of the RPP contains regulations related to the disclosure of Commission records to members of the public upon request. The rules currently identify the Federal FOIA as authority pursuant to which the Commission promulgated Subpart H, and the subpart contains multiple references to the FOIA. Although certain language in the current Subpart H is identical to language in the FOIA, the Commission, a Federal-interstate compact agency, is not a Federal agency, and the Commission is expressly exempt by § 15.1(m) of the Compact from the Federal Administrative Procedure Act, of which FOIA is a part. The agenda for a January 29, 1975 Commission conference session and business meeting at which adoption of the then-draft Subpart H regulations was discussed makes clear the Commission understood this at the time. The agenda states, "The Commission is not subject to the Administrative Procedures (sic) Act. However, staff recommends approval of these regulations in any case as a matter of desirable policy." At a business meeting on February 26, 1975, the Commission adopted the Subpart H regulations as proposed.

References to the FOIA in Subpart H have created confusion on the part of individuals who seek access to Commission records. In particular, requests for records filed with the Commission under Subpart H often cite to procedural provisions of the FOIA that differ from those in Subpart H. The proposed amendments would eliminate an important source of such confusion. The proposed amendments also would remove gendered pronouns used in the current regulations to align with the Commission's support of diversity, equity, inclusion and belonging.
Proposed Changes to Rules of Practice & Procedure

The proposed amendments to the RPP - title 18, chapter III of the Code of Federal Regulations are as follows:

PART 401—RULES OF PRACTICE AND PROCEDURE

  1. The authority citation for part 401 continues to read as follows:

Authority: Delaware River Basin Compact (75 Stat. 688), unless otherwise noted.

Subpart A—Comprehensive Plan

  1. In § 401.8, revise paragraph (a) to read as follows:
  • 401.8 Public projects under Article 11 of the Compact.

(a)  After a project of any Federal, State or local agency has been included in the Comprehensive Plan, no further action will be required by the Commission or by the agency to satisfy the requirements of Article 11 of the Compact, except as the Comprehensive Plan may be amended or revised pursuant to the Compact and this part. Any project which is materially changed from the project as described in the Comprehensive Plan will be deemed to be a new and different project for the purposes of Article 11 of the Compact. Whenever a change is made the sponsor shall advise the Executive Director, who will determine whether the change is deemed a material change within the meaning of this part.

*          *          *          *          *

Subpart B—Water Resources Program

  1. Revise §§ 401.22 and 401.23 to read as follows
  • 401.22 Concept of the program.

The Water Resources Program, as defined and described in Section 13.2 of the Compact, will be a reasonably detailed amplification of that part of the Comprehensive Plan which the Commission recommends for action. That part of the Program consisting of a presentation of the water resource needs of the Basin will be revised only at such intervals as may be indicated to reflect new findings and conclusions, based upon the Commission's continuing planning programs.

  • 401.23 Procedure.

The Water Resources Program will be prepared and considered by the Commission for adoption annually. Projects included in the Water Resources Program shall have been previously included in the Comprehensive Plan, except that a project may be added to both the Plan and the Program by concurrent action of the Commission. In such instances, the project's sponsor shall furnish the information listed in § 401.4(b) prior to the inclusion of the project in the Comprehensive Plan and Water Resources Program.

  • § 401.24 – 401.26 [Removed]
  1. Remove §§ 401.24 through 401.26.

Subpart C—Project Review Under Section 3.8 of the Compact

  1. In § 401.38, revise the introductory text to read as follows:
  • 401.38 Form of referral by State or Federal agency.

Upon receipt of an application by any State or Federal agency for any project reviewable by the Commission under these regulations, if the project has not prior thereto been reviewed and approved by the Commission, such agency shall refer the project for review under Section 3.8 of the Compact in such form and manner as shall be provided by Administrative Agreement.

*          *          *          *          *

  1. Revise § 401.39 to read as follows:
  • 401.39 Form of submission of projects.

(a)  Submission constituting application. Where a project is subject to review under Section 3.8 of the Compact, the submission shall be in accordance with such form of application as the Executive Director may prescribe and with such supporting documentation as the Executive Director may reasonably require for the administration of the provisions of the Compact. An application shall be deemed complete and the Commission's review of the application may commence upon submission of the completed form in accordance with paragraph (b) of this section, and payment of the applicable fee as set forth in § 401.43 together with all balances due the Commission, if any, by the applicant or any member of its corporate structure, for unpaid fees, penalties or interest.

(b)  Submission of applications. Application forms and accompanying submissions shall be filed in accordance with the filing instructions included on the application form.

(c)  Availability of forms. Any person may obtain a copy of any form prescribed for use in paragraph (a) of this section on the Commission's website, https://www.drbc.gov.

  1. Revise § 401.41 to read as follows:
  • 401.41 Limitation of approval; dormant applications.

(a)  Extension by Executive Director.  (1) For any Commission approval not assigned an expiration date, the Commission's approval shall expire five years from the approval date unless prior thereto the Executive Director extends the approval for an additional five-year period based upon a written request from the project sponsor accompanied by supporting documentation demonstrating to the Executive Director’s satisfaction that the following criteria have been met:  

(i)  Either:

(A) The project sponsor has expended, at a minimum, the sum of one million dollars ($1,000,000) or an amount representing substantial funds in relation to the cost of the project in reliance upon the Commission's approval; or

(B)  In the alternative, circumstances beyond the project sponsor's control (including but not limited to, pending legal challenges to local, State or Federal permits) have prevented the sponsor from  expending an amount equal to either of the sums set forth in paragraph (a)(1)(i)(A) of this section;

(ii)  No material changes to the project as approved are proposed;

(iii)  The condition of the project site has not changed in a manner important to determining whether the project would substantially impair or conflict with the Commission's Comprehensive Plan; and

(iv)  The Commission's Comprehensive Plan has not changed in a manner important to determining whether the project would substantially impair or conflict with the Comprehensive Plan.

(2) Otherwise, the Executive Director shall deny the request.

(3) Public notice of a determination by the Executive Director pursuant to this paragraph (a) shall be provided no later than the Commission's next regularly scheduled public hearing or business meeting following the determination. A determination by the Executive Director pursuant to this section is appealable in accordance with subpart F of this part.

(b)  Review by Commissioners.  If in the view of the Executive Director (or if appealed to the Commission pursuant to subpart F of this part, in the view of the Commission), one or more material changes to a project as approved are proposed, or if the Executive Director determines that any one or more of the other criteria listed in paragraph (a) of this section are not satisfied, the project sponsor must apply for renewal and modification of its approval in accordance with the customary application procedure for any docket renewal or approval.

(c)  Automatic termination of application. Any application that remains dormant (no proof of active pursuit of approvals) for a period of three years from date of receipt, shall be automatically terminated without further action of the Commission. Any renewed activity following that date will require submission of a new application.

  1. In § 401.42, revise paragraph (e) to read as follows:
  • 401.42 One permit program.

*    *          *          *          *

(e) Comprehensive Plan projects.  Articles 11 and 13 of the Compact require certain projects to be included in the Comprehensive Plan. To add a project not yet included in the Comprehensive Plan, the project sponsor shall submit a separate application to the Commission. If following its review and public hearing the Commission approves the addition of the project to the Comprehensive Plan, the Commission's approval will include such project requirements as are necessary under the Compact and Commission regulations. All other project approvals that may be required from the Signatory Party Agency or the Commission under regulatory programs administered pursuant to this section may be issued through the One Permit Program. An application for renewal or modification of a project in the Comprehensive Plan that does not materially change the project may be submitted only to the Signatory Party Agency unless otherwise specified in the Administrative Agreement.

*          *          *          *          *

  1. In § 401.43, revise paragraphs (b)(1)(ii) and (b)(4)(ii), (iii), and (iv) and remove the entries for "Name change" and "Change of Ownership" in Table 3 to § 401.43 and add an entry for "Name change or Change of Ownership" in their place.

The revisions and addition read as follows:

  • 401.43 Regulatory program fees.

*          *          *          *          *

(b)  *          *          *

(1)        *          *          *

 (ii)  Project requiring inclusion in the comprehensive plan.  Any project that in accordance with section 11 or section 13.1 of the Delaware River Basin Compact and DRBC regulations must be added to the Comprehensive Plan (also, "Plan"). In addition to any new project required to be included in the Plan, such projects include existing projects that in accordance with section 13.1 of the Compact are required to be included in the Plan and which were not previously added to the Plan. Any existing project that is materially changed from the project as described in the Plan shall be deemed to be a new and different project for purposes of this section.

*          *          *          *          *

(4)        *          *          *

(ii)  Late filed renewal application.  Any renewal application submitted fewer than 180 calendar days in advance of the expiration date or after such other date specified in the docket or permit or letter of the Executive Director for filing a renewal application shall be subject to a late filed renewal application charge in excess of the otherwise applicable fee.

(iii)  Modification of a DRBC approval.  Following Commission action on a project, any material change to the project as approved shall require an additional application and accompanying fee. Such fee shall be calculated in accordance with paragraph (e) of this section and may be subject to an alternative review fee in accordance with paragraph (b)(3) of this section.

(iv)  Name change or change of ownership.  Each project with a docket or permit issued by the DRBC will be charged an administrative fee as set forth in paragraph (e) of this section if it undergoes a change in name or a "change in ownership" as that term is defined at § 420.31(e)(2) of this subchapter.

*          *          *          *          *

Table 3 to § 401.43—Additional Fees

Proposed action

Fee

Fee maximum

*          *          *          *          *          *          *

Name Change or Change of Ownership

$1,8421

 

1 Subject to annual adjustment in accordance with paragraph (c) of this section.

Subpart H—[Amended]

  1. Amend Subpart H by removing the authority citation.
  2. In § 401.103, revise paragraph (a) to read as follows:
  • 401.103 Request for existing records.

(a)  Any written request to the Commission for existing records not prepared for routine distribution to the public shall be deemed to be a request for records pursuant to the provisions of this part, whether or not the provisions of this part are mentioned in the request, and shall be governed by the provisions of this part.

*          *          *          *          *

  1. Revise § 401.104 to read as follows:
  • 401.104 Preparation of new records.

The provisions of this part apply only to existing records that are reasonably described in a request filed with the Commission pursuant to the procedures herein established. The Commission shall not be required to prepare new records in order to respond to a request for information.

  1. In § 401.105, revise paragraph (b) to read as follows:
  • 401.105 Indexes of certain records.

*          *          *          *          *

(b)  A copy of each such index is available at cost of duplication from the Records Access Officer.

  1. Revise § 401.106 to read as follows:
  • 401.106 Records Access Officer.

The Executive Director shall designate a Commission employee as the Records Access Officer. The Records Access Officer shall be responsible for Commission compliance with the provisions of this part. All requests for agency records shall be sent to the Records Access Officer in a manner consistent with § 401.108(a).

  1. In § 401.108, revise paragraphs (a), (b)(1), (c), and (d) to read as follows:
  • 401.108 Filing a request for records.

(a)  All requests for Commission records shall be  submitted to the Records Access Officer on such forms as the Executive Director may prescribe, which shall be available on the Commission's website,  https://www.drbc.gov, or by written request to the Commission, 25 Cosey Road, West Trenton, NJ 08628.

(b)  *          *          *

(1)  If the description is insufficient to locate the records requested, the Records Access Officer will so notify the person making the request and indicate the additional information needed to identify the records requested.

*          *          *          *          *

(c)  Upon receipt of a request for records, the Records Access Officer shall enter it in a public log (which entry may consist of a copy of the request). The log shall state the date and time received, the name and address of the person making the request, the nature of the records requested, the action taken on the request, the date of the determination letter sent pursuant to § 401.109(b), the date(s) any records are subsequently furnished, the number of staff-hours and grade levels of persons who spent time responding to the request, and the payment requested and received.

(d)  A denial of a request for records, in whole or in part, shall be signed by the Records Access Officer. The name and title or position of each person who participated in the denial of a request for records shall be set forth in the letter denying the request.  This requirement may be met by attaching a list of such individuals to the letter.

  1. In § 401.109, revise paragraphs (a), (b) introductory text, and (c) to read as follows:
  • 401.109 Time limitations.

(a)  All time limitations established pursuant to this section shall begin as of the time at which a request for records is logged in by the Records Access Officer pursuant to § 401.108(c). An oral request for records shall not begin any time requirement. A written request for records sent elsewhere within the Commission shall not begin any time requirement until it is redirected to the Records Access Officer and is logged in accordance with § 401.108(c). A request that is expected to involve fees in excess of $50.00 will not be deemed received until the requester is promptly notified and agrees to bear the cost or has so indicated on the initial request.

(b)  Within 10 working days (excepting Saturdays, Sundays and legal public holidays) after a request for records is logged by the Records Access Officer, the record shall be furnished or a letter shall be sent to the person making the request determining whether, or the extent to which, the Commission will comply with the request, and, if any records are denied, the reasons therefor.

*          *          *          *          *

(c)  If any record is denied, the letter shall state the right of the person requesting such records to appeal any adverse determination to the Executive Director of the Commission. Such an appeal shall be filed within 30 days from receipt of the Records Access Officer's determination denying the requested information (where the entire request has been denied), or from the receipt of any information made available pursuant to the request (where the request has been denied in part). Within 20 working days (excepting Saturdays, Sundays and legal public holidays) after receipt of any appeal, or any authorized extension, the Executive Director or the Executive Director's designee shall make a determination and notify the appellant of such determination.  If the appeal is decided in favor of the appellant the requested information shall be promptly supplied as provided in this part. If on appeal the denial of the request for records is upheld in whole or in part, the appellant shall be entitled to appeal to the Commission at its regular meeting. In the event that the Commission confirms the Executive Director's denial the appellant shall be notified of the provisions for judicial review.

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  1. In § 401.110, revise paragraphs (a)(1)(i)(A) and (c) to read as follows:
  • 401.110 Fees.

(a)  *          *          *

(1)        *          *          *

(i)   *          *          *

(A)       Processing requests for records;

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(c)  Payment shall be made by check or money order payable to "Delaware River Basin Commission" and shall be sent to the Records Access Officer.

  1. Revise § 401.115 to read as follows:
  • 401.115 Discretionary disclosure by the Executive Director.

(a)  The Executive Director may exercise discretion to disclose part or all of any Commission record that is otherwise exempt from disclosure pursuant to this part whenever the Executive Director determines that such disclosure is in the public interest, will promote the objectives of the Commission and is consistent with the rights of individuals to privacy, the property rights of persons in trade secrets and the need for the Commission to promote frank internal policy deliberations and to pursue its regulatory activities without disruption.

(b)  Discretionary disclosure of a record pursuant to this section shall invoke the requirement that the record shall be disclosed to any person who requests it pursuant to § 401.108, but shall not set a precedent for discretionary disclosure of any similar or related record and shall not obligate the Executive Director to disclose any other record that is exempt from disclosure.

Subpart I—General Provisions

  1. In § 401.121, redesignate paragraph (e) as paragraph (f) and add new paragraph (e) to read as follows:
  • 401.121 Definitions.

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(e)  Material change shall mean a change to a project previously approved by the Commission that is important in determining whether the project would substantially impair or conflict with the Commission's comprehensive plan.

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Contacts

For information regarding the public hearings and submission of written comments:

For information concerning the proposed amendments:

  • Contact Pamela Bush, Commission Secretary and Assistant General Counsel, at pam.bush@drbc.gov (preferred) or 609-477-7203.

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Notice Posted: 9/28/23