17 



involving the public and to err on the side of full disclosure to any- 

 body who asks. 



Mr. Weldon. Do you have a set criteria for which public com- 

 ments you respond to and which ones you don't? 



Mr. Rees. There is not a set criterion because it varies widely 

 from case to case, but, as I say, the philosophy behind the Corps 

 public involvement program, if you will, is maximize the involve- 

 ment. 



Mr. Weldon. But are you saying that in the instance of the New 

 York/ New Jersey Harbor region that this was, in fact, acceptable 

 to the Corps? 



Mr. Rees. I am not aware of the details of this particular inci- 

 dent, and I would be pleased to look into it because I am troubled if 

 there is perception that the Corps is trying to hide anything. Per- 

 sonally knowing and, in fact, having run that kind of program in 

 the field for many years before I came to Washington, I sense that 

 there is more than meets the eye because we really don't like to do 

 business that way. 



Mr. Weldon. Thank you. I would appreciate that for the record. 



[The information submitted by Mr. Rees follows]: 



The purpose of the Public Notice in the Corps' Regulatory Program is to solicit 

 public opinion and comments on proposals that require Department of Army per- 

 mits. In some instances, such as the application by the Port Authority of New York/ 

 New Jersey to dredge several of its berthing areas, hundreds of comments are re- 

 ceived. The New York District evaluated all comments they received. However, the 

 District determined that it was not necessary or in the public interest to prepare an 

 individual response to each comment. Further, because comments are received 

 before all information is evaluated and a permit decision is made, it would be pre- 

 mature to provide a substantive response to all comments. The District does ensure 

 that the receipt of comments is acknowledged to each submitter. 



As it pertains to this permit request, all comments received from the Environ- 

 mental Defense Fund (EDF) were addressed in the permit decision, though not all 

 were specifically identified in the decision document. In fact, several EDF recom- 

 mendations were incorporated into the special conditions for the permit. Examples 

 of the special requirements that were placed in the special conditions as a result of 

 EDF comments include: maximum distance from the disposal buoy at which dis- 

 charge operations can occur; maximum vessel speed at time of disposal; reduction of 

 the timeframe during which dredging operations involving contaminated sediment 

 can occur; and the requirement for a contingency capping plan if a long enough 

 break occurs in the dredging operation. 



The New York District does not require use of Freedom of Information Act proce- 

 dures in responding to the majority of requests for documents related to permit ap- 

 plications. Requests generally involve a limited number of documents, such as the 

 application form, public notice and final permit document, which are public infor- 

 mation and freely releasable. However, the administrative record for some permit 

 applications, such as the Ports of Elizabeth and Newark, are voluminous, containing 

 many documents, some of which are quite lengthy. Such documents could include 

 comments on a proposal, information provided by the applicant in response to the 

 comments, and information on alleged violations. These lengthy documents may 

 contain proprietary information or information that is subject to Privacy Act re- 

 strictions. Where requests are for numerous documents or the entire record, which 

 may contain proprietary or Privacy Act restricted information, or there is an ex- 

 pressed intent to litigate a decision, the New York District's policy to require re- 

 quests under the Freedom of Information Act is appropriate. 



Mr. Weldon. Mr. Sinding, in your testimony you talk about the 

 state's role. I have particular concern because, as you know, your 

 region will be the agency that will be directly involved in what 

 happens in the Delaware River port dredging project. As you know, 

 my district is adjacent to the river. Do you feel that states should 



