[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: 33CFR331.9]



[Page 491-492]

 

                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.  331.9  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



[[Page 492]]



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.