[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66722-66728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21117]


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DELAWARE RIVER BASIN COMMISSION

18 CFR Part 401


Rules of Practice and Procedure

AGENCY: Delaware River Basin Commission.

ACTION: Notice of proposed rulemaking; public hearing.

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SUMMARY: The Commission proposes to amend its Rules of Practice and 
Procedure to: resolve ambiguities around the automatic termination of 
project approvals issued by the Commission; 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.

DATES: 
    Written comments: Written comments will be accepted through 5 p.m. 
on Thursday, November 30, 2023.
    Public hearings: Public hearings will be held remotely via Zoom on 
the following dates at the noted times. Details about accessing the 
hearings are available on the Commission's website, www.drbc.gov.
    1. November 13, 2023, 1:30 p.m. to no later than 4 p.m.
    2. November 13, 2023, 6:30 p.m. to no later than 9 p.m.

ADDRESSES: 
    To submit written comments: Written comments will be accepted until 
5 p.m. on Thursday, November 30, 2023 through the Commission's online 
public comment collection system at: https://hearing.drbc.commentinput.com?id=T95htQGAg. To request an exception 
from use of the online system based on lack of access to the internet, 
please contact: Commission Secretary, DRBC, P.O. Box 7360, West 
Trenton, NJ 08628.
    To register to speak at public hearings: Although attendance at the 
hearings is not limited and requires no registration, those who wish to 
provide oral comment at a hearing must register in advance to do so. 
Registration will be through Zoom. Links to the Zoom registration for 
each of the public hearing dates and times are posted at www.drbc.gov. 
Online registration will remain open until 5 p.m. on the day prior to 
the hearing date or until all available speaking slots have been

[[Page 66723]]

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.
    See SUPPLEMENTARY INFORMATION for details regarding the substance 
of written comments.

FOR FURTHER INFORMATION CONTACT: For information regarding the public 
hearings and submission of written comments, contact Kate Schmidt, 
Communications Specialist, at <a href="/cdn-cgi/l/email-protection#c2a9a3b6a7ecb1a1aaafaba6b682a6b0a0a1eca5adb4"><span class="__cf_email__" data-cfemail="b0dbd1c4d59ec3d3d8ddd9d4c4f0d4c2d2d39ed7dfc6">[email protected]</span></a> (preferred) or 609-
883-9500, ext. 205. For information concerning the proposed amendments, 
contact Pamela Bush, Commission Secretary and Assistant General 
Counsel, at <a href="/cdn-cgi/l/email-protection#1363727e3d7166607b53776171703d747c65"><span class="__cf_email__" data-cfemail="4232232f6c2037312a02263020216c252d34">[email protected]</span></a> (preferred) or 609-477-7203.

SUPPLEMENTARY INFORMATION: The Delaware River Basin Commission 
(``DRBC'' or ``Commission'') is a Federal-interstate compact agency 
formed by the enactment of concurrent legislation by four states and 
the United States in 1961 \1\ to manage the water resources of the 
Delaware River Basin (the ``Basin'') without regard to political 
boundaries. The Commission's members are, ex officio, the governors of 
the basin states (Delaware, New Jersey, New York, and Pennsylvania) and 
the Division Engineer of the U.S. Army Corps of Engineers North 
Atlantic Division, who represents the United States.
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    \1\ United States Public Law 87-328, Approved Sept. 27, 1961, 75 
Statutes at Large 688; 53 Delaware Laws, Ch. 71, Approved May 26, 
1961; New Jersey Laws of 1961, Ch. 13, Approved May 1, 1961; New 
York Laws of 1961, Ch. 148, Approved March 17, 1961; Pennsylvania 
Acts of 1961, Act. No. 268, Approved July 7, 1961.
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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 (the ``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 Sec.  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 Sec.  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 Sec.  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.

Proposed Amendments

Amendments to Sec.  401.41

    Proposed Sec.  401.41(a). Paragraph (a) of Sec.  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 Sec.  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 Sec.  401.41 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

[[Page 66724]]

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, Sec.  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 Sec.  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, Sec. Sec.  401.81-401.90.
    Proposed Sec.  401.41(b). The proposed amendments include a new 
Sec.  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 Sec.  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 Sec.  401.43(b)(4)(iii) 
sets forth the fee associated with modification of a Commission 
approval).
    Proposed Sec.  401.41(c). Proposed Sec.  401.41(c) would 
effectively preserve the current Sec.  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 Sec. Sec.  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, Sec.  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 Sec.  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 Sec.  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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 (Sec.  401.43(b)(4)(iv)) and when the project undergoes a 
change of ownership

[[Page 66725]]

(Sec.  401.43(b)(4)(v)). A corresponding change is required to the 
accompanying Table 3 to Sec.  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 Sec.  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.

Public Process

    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.
    Submission of written comments. Written comments along with any 
attachments should be submitted through the Commission's web-based 
comment system (https://hearing.drbc.commentinput.com?id=T95htQGAg) 
until 5 p.m. on Thursday, November 30, 2023. 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.
    Public hearings. To provide for an orderly process, support public 
and community health measures, and provide expanded access to 
interested parties regardless of their geographic location, the 
Commission is conducting its public hearings virtually. Attendance at 
the hearings is not limited and requires no registration. 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, using the link on the 
Commission's website. Registrations will be monitored, and if capacity 
is not adequate to accommodate all who wish to speak, additional 
opportunities may be added. Key elements of the procedure are as 
follows:
    [ssquf] Online registration to speak at a public hearing will 
remain open until 5 p.m. the day prior to each hearing.
    [ssquf] Each person who wishes to provide oral comment may do so at 
only one public hearing.
    [ssquf] Speaking time will be limited to approximately three 
minutes per speaker.
    [ssquf] Elected government officials and their staff will have the 
opportunity to identify themselves when registering to attend a 
hearing.
    [ssquf] Attendance at the public hearings is not limited and 
requires no advance registration.
    [ssquf] Written and oral comment will receive equal consideration.
    The Commission appreciates the public's participation and input on 
this matter.
    Translation Services for Rulemaking Materials. 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 email to 
<a href="/cdn-cgi/l/email-protection#354147545b465954415075514757561b525a43"><span class="__cf_email__" data-cfemail="691d1b08071a05081d0c290d1b0b0a470e061f">[email protected]</span></a>. Please specify both the requested language and the 
requested documents.
    More Information. Detailed and up-to-date information about the 
public process, including all proposed rule text, related documents, 
and links for online registration to speak at each of the scheduled 
public hearings can be found on the Commission website, www.drbc.gov.

List of Subjects in 18 CFR Part 401

    Administrative practice and procedure, Archives and records, Water 
resources.

    For the reasons set forth in the preamble, the Delaware River Basin 
Commission proposes to amend title 18, chapter III of the Code of 
Federal Regulations as follows:

PART 401--RULES OF PRACTICE AND PROCEDURE

0
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

0
2. In Sec.  401.8, revise paragraph (a) to read as follows:


Sec.  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

[[Page 66726]]

deemed a material change within the meaning of this part.
* * * * *

Subpart B--Water Resources Program

0
3. Revise Sec. Sec.  401.22 and 401.23 to read as follows:


Sec.  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.


Sec.  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 Sec.  401.4(b) prior to the inclusion of the project in the 
Comprehensive Plan and Water Resources Program.


Sec. Sec.  401.24-401.26  [Removed]

0
4. Remove Sec. Sec.  401.24 through 401.26.

Subpart C--Project Review Under Section 3.8 of the Compact

0
5. In Sec.  401.38, revise the introductory text to read as follows:


Sec.  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.
* * * * *
0
6. Revise Sec.  401.39 to read as follows:


Sec.  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 Sec.  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.
0
7. Revise Sec.  401.41 to read as follows:


Sec.  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.
0
8. In Sec.  401.42, revise paragraph (e) to read as follows:


Sec.  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

[[Page 66727]]

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.
* * * * *
0
9. In Sec.  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 Sec.  401.43 and add an entry for ``Name 
change or Change of Ownership'' in their place.
    The revisions and addition read as follows:


Sec.  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 Sec.  
420.31(e)(2) of this subchapter.
* * * * *

                Table 3 to Sec.   401.43--Additional Fees
------------------------------------------------------------------------
                                                                  Fee
                  Proposed action                      Fee      maximum
------------------------------------------------------------------------
 
                                * * * * *
Name Change or Change of Ownership................     $1,842  .........
                                                          \1\
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.

Subpart H--[Amended]

0
10. Amend Subpart H by removing the authority citation.
0
11. In Sec.  401.103, revise paragraph (a) to read as follows:


Sec.  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.
* * * * *
0
12. Revise Sec.  401.104 to read as follows:


Sec.  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.
0
13. In Sec.  401.105, revise paragraph (b) to read as follows:


Sec.  401.105  Indexes of certain records.

* * * * *
    (b) A copy of each such index is available at cost of duplication 
from the Records Access Officer.
0
14. Revise Sec.  401.106 to read as follows:


Sec.  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 Sec.  401.108(a).
0
15. In Sec.  401.108, revise paragraphs (a), (b)(1), (c), and (d) to 
read as follows:


Sec.  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 Sec.  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.
0
16. In Sec.  401.109, revise paragraphs (a), (b) introductory text, and 
(c) to read as follows:


Sec.  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 Sec.  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 Sec.  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.

[[Page 66728]]

    (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.
* * * * *
0
17. In Sec.  401.110, revise paragraphs (a)(1)(i)(A) and (c) to read as 
follows:


Sec.  401.110  Fees.

    (a) * * *
    (1) * * *
    (i) * * *
    (A) Processing requests for records;
* * * * *
    (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.
0
18. Revise Sec.  401.115 to read as follows:


Sec.  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 Sec.  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

0
19. In Sec.  401.121, redesignate paragraph (e) as paragraph (f) and 
add new paragraph (e) to read as follows:


Sec.  401.121  Definitions.

* * * * *
    (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.
* * * * *

    Dated: September 21, 2023.
Pamela M. Bush,
Commission Secretary/Assistant General Counsel.
[FR Doc. 2023-21117 Filed 9-27-23; 8:45 am]
BILLING CODE 6360-01-P


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