[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR331.3]



[Page 485-486]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

PART 331_ADMINISTRATIVE APPEAL PROCESS--Table of Contents

 

Sec.  331.3  Review officer.



    (a) Authority. (1) The division engineer has the authority and 

responsibility for administering a fair, reasonable, prompt, and 

effective administrative appeal process. The division engineer may act 

as the review officer (RO), or may delegate, either generically or on a 

case-by-case basis, any authority or responsibility described in this 

part as that of the RO. With the exception of JDs, as described in this 

paragraph (a)(1), the division engineer may not delegate any authority 

or responsibility described in this part as that of the division 

engineer. For approved JDs only, the division engineer may delegate any 

authority or responsibility described in this part as that of the 

division engineer, including the final appeal decision. In such cases, 

any delegated authority must be granted to an official that is at the 

same or higher grade level than the grade level of the official that 

signed the approved JD. Regardless of any delegation of authority or 

responsibility for ROs or for final appeal decisions for approved JDs, 

the division engineer retains overall responsibility for the 

administrative appeal process.

    (2) The RO will assist the division engineer in reaching and 

documenting the division engineer's decision on the merits of an appeal, 

if the division engineer has delegated this responsibility as explained 

in paragraph (a)(1) of this section. The division engineer has the 

authority to make the final decision on the merits of the appeal. 

Neither the RO nor the division engineer has the authority to make a 

final decision to issue or deny any particular permit nor to make an 

approved JD, pursuant to the administrative appeal process established 

by this part. The authority to issue or deny permits remains with the 

district engineer. However, the division



[[Page 486]]



engineer may exercise the authority at 33 CFR 325.8(c) to elevate any 

permit application, and subsequently make the final permit decision. In 

such a case, any appeal process of the district engineer's initial 

decision is terminated. If a particular permit application is elevated 

to the division engineer pursuant to 33 CFR 325.8(c), and the division 

engineer's decision on the permit application is a permit denial or 

results in a declined permit, that permit denial or declined permit 

would be subject to an administrative appeal to the Chief of Engineers.

    (3) Qualifications. The RO will be a Corps employee with extensive 

knowledge of the Corps regulatory program. Where the permit decision 

being appealed was made by the division engineer or higher authority, a 

Corps official at least one level higher than the decision maker shall 

make the decision on the merits of the RFA, and this Corps official 

shall appoint a qualified individual as the RO to conduct the appeal 

process.

    (b) General--(1) Independence. The RO will not perform, or have been 

involved with, the preparation, review, or decision making of the action 

being appealed. The RO will be independent and impartial in reviewing 

any appeal, and when assisting the division engineer to make a decision 

on the merits of the appeal.

    (2) Review. The RO will conduct an independent review of the 

administrative record to address the reasons for the appeal cited by the 

applicant in the RFA. In addition, to the extent that it is practicable 

and feasible, the RO will also conduct an independent review of the 

administrative record to verify that the record provides an adequate and 

reasonable basis supporting the district engineer's decision, that facts 

or analysis essential to the district engineer's decision have not been 

omitted from the administrative record, and that all relevant 

requirements of law, regulations, and officially promulgated Corps 

policy guidance have been satisfied. Should the RO require expert advice 

regarding any subject, he may seek such advice from any employee of the 

Corps or of another Federal or state agency, or from any recognized 

expert, so long as that person had not been previously involved in the 

action under review.