[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2007]
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.