DELAWARE RIVER BASIN COMMISSION
18 CFR Part 401
Rules of Practice and Procedure
AGENCY: Delaware River Basin Commission.
ACTION: Final rule; correcting amendments.
SUMMARY: The Delaware River Basin Commission is amending its Rules of Practice and
Procedure 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 incorrect references to the Federal Freedom of
Information Act in the Commission’s regulations providing for access to public records; align
pronouns with the Commission’s policies regarding diversity, inclusion, and belonging; and
correct certain cross-references.
DATES: This final rule is effective [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE
FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: Pamela M. Bush, Esquire, Commission Secretary and
Assistant General Counsel, at pam.bush@drbc.gov (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 19611 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 states of Delaware, New Jersey, New York, and

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.
Pennsylvania, and the Division Engineer of the U.S. Army Corps of Engineers North Atlantic
Division, who represents the United States.
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, 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.
On September 28, 2023, the Commission published a proposed rule (88 FR 66722) to
amend the 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 incorrect references to the
Federal Freedom of Information Act in the Commission’s regulations providing for access to
public records; and align pronouns with the Commission’s policies regarding diversity, inclusion,
and belonging. A notice of the proposed amendments appeared in the Delaware Register of
Regulations, 27 Del. Reg. 196, 206, on October 1, 2023, the New Jersey Register, 55 N.J.R.
2179(a), on October 16, 2023, the New York Register, 45 N.Y. Reg. 9, on October 11, 2023, and
the Pennsylvania Bulletin, 53 Pa. B. 6698, on October 28, 2023.
Opportunity for public input on the proposed rules was provided during a comment
period that ran from September 28, 2023, through November 30, 2023. In addition to soliciting
written comments, the Commission accepted oral comment at two hearings conducted via
Zoom and telephone. The Commission received a total of 209 public comment submissions,

consisting of 199 written submissions and ten oral comments. The submissions typically
consisted of a set of comments from a single individual or organization, and they typically
addressed more than one aspect or provision of the proposed amendments. In many instances,
a single submission included a set of comments by two or more individuals or organizations.
Some submissions consisted of petitions or a set of comments with multiple signers. Similar or
identical comments were in many instances submitted by individual commenters using form
letters or template language provided by others. Commenters were not limited to a single
submission, and some commenters offered two or more submissions. The “199” figure
represents the number of individual written submissions the Commission received during the
comment period without regard to the number of comments within a submission, the number
of signers on a single submission, or the number of individuals making a joint submission.
The Commission reviewed all comments and supporting material it received during the
comment period. The staff, in consultation with the Commissioners, prepared a Comment and
Response Document summarizing the comments on the proposed rule and setting forth the
Commission’s responses and revisions in detail. By Resolution No. 2024 – 06 on June 5, 2024,
the Commission adopted the Comment and Response Document simultaneously with its
adoption of the final rule.
Changes from the Proposed Rule
The final rule differs from the proposed in the following respects:
Action on request for extension. The final rule provides that the Commissioners, not the
Executive Director, will approve or deny all requests for extended or renewed approval under
amended § 401.41(a) and (b), respectively. In conjunction with this change, rather than
establishing a prescribed extension term of five years, as originally proposed, the final rule at §
401.41(a) provides for the Commissioners to grant an extension of up to five years.

Eligibility for extension. Under the final rule, to qualify for extension of a docket
approval that would otherwise expire under § 401.41, in addition to demonstrating that
approved activities, site conditions, and the Comprehensive Plan have not materially changed,
the docket holder (project sponsor) will be required to demonstrate that it is diligently pursuing
the project, which can be shown through its planning, construction or project operational
activities, its project expenditures, its efforts to secure government approvals necessary for the
project, or its active participation in appeals of government decisions on its applications for
government approvals.
The docket holder will not be required to demonstrate that it has expended a fixed,
minimum dollar amount, a proposal to which commenters objected. Nor will the docket holder
be obligated to show that it has expended a substantial sum in relation to the project cost, as
the rule originally provided, or that it has expended a fixed percentage representing a
substantial sum in relation to the total cost of the project, as some commenters proposed. In
the Commission’s view, those approaches are impracticable where the project costs consist
primarily of construction costs, and where the sponsor could not lawfully or reasonably
commence construction because all final approvals have not been secured.
Public process. In accordance with the final rule, the Commission will publish notice that
it has received a request for a docket extension under § 401.41(a) and provide an opportunity
for written comment of at least ten days’ length on whether the docket holder has
demonstrated all elements requisite for an extension—i.e., that the approved activities, site
conditions, and Comprehensive Plan have not materially changed, and that the project sponsor
has diligently pursued the project in reliance on the Commission’s approval. The project
sponsor will be afforded an opportunity to respond to the comments received but will not be
obligated to do so. The Commission will provide notice at least ten days prior to the date of a

business meeting at which the Commissioners consider action on a request pursuant to §
401.41(a).
Public hearing. The final rule provides that a public hearing on a request for a docket
extension under § 401.41(a) will be held if three or more Commission members request such a
hearing in writing to the Executive Director or by vote at a public meeting.
Administrative continuance. Under the final rule, a docket that is the subject of a
request for extension under § 401.41(a) filed at least 90 days before the docket’s expiration will
be administratively continued pending final Commission action on the request in the event that
such action occurs after the otherwise effective date of termination.
Construction complete. The final rule clarifies that if the activities authorized by the
Commission’s docket are limited to construction activities, an extension in accordance with
§ 401.41(a) is no longer required once construction is complete. Because some dockets issued
for construction activities impose ongoing obligations on docket holders, the final rule further
clarifies that the expiration of the docket, including any approved extension, does not eliminate
ongoing docket obligations expressly identified as such in the docket approval.
Language of final § 401.41(b). The final language adopted for § 401.41(b) has been
modified from the originally proposed language to more accurately reflect that the burden is on
the docket holder to demonstrate eligibility for an extension under § 401.41(a).
Process for re-application. Under the final rule, if a request for extension under §
401.41(a) is denied, and the project sponsor wishes to apply for renewal of its docket approval
under paragraph (b), the project sponsor must do so by a date to be established by the
Commission. In this situation, the docket approval is not thereafter administratively continued
automatically. However, the Commission may, in its discretion, administratively extend the
docket approval in whole or in part for a period ending on or before the date on which the
Commission renders a final decision on the sponsor’s renewal application.

Correcting Amendments
On October 8, 1987, the Commission redesignated portions of the Rules of Practice and
Procedure (52 FR 37602). The final rule that contained the redesignation inadvertently failed to
update certain cross-references affected by the redesignation. This final rule corrects those
cross-references. The affected provisions are 18 CFR 401.108(c), 401.109(a), (d), and (e),
401.113, and 401.115(b).
Additional Materials
Additional materials can be found on the Commission’s website at:
https://www.nj.gov/drbc/about/regulations/finalrule_RPPamendments.html. These include
links to Resolution No. 2024 – 06 of June 5, 2024 adopting the final rule and incorporating a
clean copy of the rule text; the Commission’s Comment and Response Document; a mark-up
comparing the final to the proposed rule text; a mark-up comparing the final to the former rule
text; and copies of the comments received.
The Commission’s notice of proposed rulemaking and proposed rule text can be found
on the Commission’s website at:
https://www.nj.gov/drbc/meetings/proposed/notice_RPP_amendments.html.
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 amends
18 CFR chapter III 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

2. 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.
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Subpart B—Water Resources Program
3. 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 through 401.26 [Removed]
4. Remove §§ 401.24 through 401.26.
Subpart C—Project Review Under Section 3.8 of the Compact
5. 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 this part, 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.
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6. 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.
7. Revise § 401.41 to read as follows:
§ 401.41 Limitation of approval; dormant applications.
(a) Extension (no material change)—(1) Term of approval; extension request. 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 Commission extends the approval for
an additional period of up to five years, based upon a written request from the project sponsor
accompanied by supporting documentation demonstrating that the following criteria have
been met:
(i) No material changes to the project as approved are proposed;
(ii) 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;
(iii) 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; and
(iv) The project sponsor is diligently pursuing the project as shown by its planning,
construction or project operational activities, its project expenditures, its efforts to secure
government approvals necessary for the project, or its active participation in appeals of
government decisions on its applications for government approvals. The project sponsor is not
required by this paragraph (a)(1)(iv) to conduct activities that it is not legally authorized to
conduct or that it demonstrates would be unreasonable for it to conduct before obtaining all
necessary final government approvals.

(2) Denial of extension request. Otherwise, the extension request shall be denied, and the
project sponsor may apply for renewal of its approval under paragraph (b) of this section by a
date to be established by the Commission. If the Commission denies the request for an
extension pursuant to this section, the docket approval shall not be administratively continued
automatically pursuant to paragraph (a)(5) of this section. The Commission may, however, in its
discretion, administratively extend the docket approval in whole or in part for a period ending
on or before the date on which the Commission renders a final decision on the sponsor’s reapplication under paragraph (b) of this section.
(3) Public notice. The Commission will publish notice of receipt of a request for extension
under this paragraph (a) and will provide notice at least ten days prior to the date of a business
meeting at which the Commissioners may act on such request.
(4) Public comment. An opportunity for written comment of at least ten days’ length will
be provided on a request for extension. The project sponsor will be afforded an opportunity to
respond in writing to the comments received. A public hearing will be provided if three or more
Commission members ask the Executive Director in writing to schedule one or vote during a
public meeting of the Commission to provide one.
(5) Administrative continuance. A docket that is the subject of a request for extension
under paragraph (a) of this section filed at least 90 days before the docket’s expiration shall be
administratively continued pending the Commission’s final action on the request in the event
that such action occurs after the otherwise effective date of termination under this section.
(6) Extensions no longer needed. If the activities authorized by a docket are limited to
construction activities, an extension is no longer required once construction is complete;
however, the expiration of the docket, including any approved extension, does not eliminate
ongoing docket obligations expressly identified as such in the docket approval.

(b) Re-application (material change). If the Commission determines that the project
sponsor has failed to demonstrate that no material changes to the project as approved are
proposed and that the other criteria listed in paragraph (a)(1) of this section are satisfied, the
project sponsor must apply for renewal and any necessary 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.
8. In § 401.42, revise paragraph (e) to read as follows:
§ 401.42 One Permit Program.
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(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 this part. 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.
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9. In § 401.43:

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a. Revise paragraphs (b)(1)(ii) and (b)(4)(ii) through (iv); and
b. In paragraph (e), in table 3, remove the entries for “Name change” and “Change of
Ownership” and add an entry at the end of the table for “Name Change or Change of
Ownership” in their place.
The revisions and addition read as follows:
§ 401.43 Regulatory program fees.
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(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.
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(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.
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Table 3 to § 401.43—Additional Fees
Proposed action
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Fee

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Name Change or Change of Ownership
Fee maximum

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$1,9171

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

Subpart H—Public Access to Records and Information
10. Remove the authority citation to subpart H.
11. 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.
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12. 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.
13. In § 401.105, revise paragraph (b) to read as follows:
§ 401.105 Indexes of certain records.
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(b) A copy of each such index is available at cost of duplication from the Records Access
Officer.
14. 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).
15. 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.
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(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.

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(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.
16. In § 401.109, revise paragraphs (a), (b) introductory text, and (c) through (e) 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.
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(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.
(d) If the request for records will result in a fee of more than $25, determination letter
under paragraph (b) of this section shall specify or estimate the fee involved and may require
prepayment, as well as payment of any amount not yet received as a result of any previous
request, before the records are made available. If the fee is less than $25, prepayment shall not
be required unless payment has not yet been received for records disclosed as a result of a
previous request.

(e) Whenever possible, the determination letter required under paragraph (b) of this
section, relating to a request for records that involves a fee of less than $25.00, shall be
accompanied by the requested records. Where this is not possible, the records shall be
forwarded as soon as possible thereafter. For requests for records involving a fee of more than
$25.00, the records shall be forwarded as soon as possible after receipt of payment.
17. In § 401.110, revise paragraphs (a)(1)(i)(A) and (c) to read as follows:
§ 401.110 Fees.
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(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.
18. Revise § 401.113 to read as follows:
§ 401.113 Segregable materials.
Any reasonably segregable portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt under this part, except as provided
in § 401.102.
19. 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
20. 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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Dated: June 11, 2024.
Pamela M. Bush,
Commission Secretary/Assistant General Counsel.

[FR Doc. 2024-13308 Filed: 6/18/2024 8:45 am; Publication Date: 6/20/2024]