[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR331.9]

[Page 482]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 331--ADMINISTRATIVE APPEAL PROCESS--Table of Contents
 
Sec. 331.9  Final appeal decision.

    (a) In accordance with the authorities contained in Sec. 331.3(a), 
the division engineer will make a decision on the merits of the appeal. 
While reviewing an appeal and reaching a decision on the merits of an 
appeal, the division engineer can consult with or seek information from 
any person, including the district engineer.
    (b) The division engineer will disapprove the entirety of or any 
part of the district engineer's decision only if he determines that the 
decision on some relevant matter was arbitrary, capricious, an abuse of 
discretion, not supported by substantial evidence in the administrative 
record, or plainly contrary to a requirement of law, regulation, an 
Executive Order, or officially promulgated Corps policy guidance. The 
division engineer will not attempt to substitute his judgment for that 
of the district engineer regarding a matter of fact, so long as the 
district engineer's determination was supported by substantial evidence 
in the administrative record, or regarding any other matter if the 
district engineer's determination was reasonable and within the zone of 
discretion delegated to the district engineer by Corps regulations. The 
division engineer may instruct the district engineer on how to correct 
any procedural error that was prejudicial to the appellant (i.e., that 
was not a ``harmless'' procedural error), or to reconsider the decision 
where any essential part of the district engineer's decision was not 
supported by accurate or sufficient information, or analysis, in the 
administrative record. The division engineer will document his decision 
on the merits of the appeal in writing, and provide a copy of this 
decision to the applicant (using certified mail) and the district 
engineer.
    (c) The final decision of the division engineer on the merits of the 
appeal will conclude the administrative appeal process, and this 
decision will be filed in the administrative record for the project.