For prohibited transaction penalty proceedings, the following shall
apply in lieu of Sec. 18.9 of this title.
(a) General. At any time after the commencement of a proceeding, but
at least five (5) days prior to the date set for hearing, the parties
jointly may move to defer the hearing for a reasonable time to permit
negotiation of a settlement or an agreement containing findings and an
order disposing of the whole or any part of the proceeding. The
allowance of such deferment and the duration thereof shall be in the
discretion of the administrative law judge, after consideration of such
factors as the nature of the proceeding, the requirements of the public
interest,
the representations of the parties and the probability of reaching an
agreement which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice and the agreement;
(3) A waiver of any further procedural steps before the
administrative law judge;
(4) A waiver of any right to challenge or contest the validity of
the order and decision entered into in accordance with the agreement;
and
(5) That the order and decision of the administrative law judge
shall be final agency action.
(c) Submission. On or before the expiration of the time granted for
negotiations, but, in any case, at least five (5) days prior to the date
set for hearing, the parties or their authorized representative or their
counsel may:
(1) Submit the proposed agreement containing consent findings and an
order to the administrative law judge; or
(2) Notify the administrative law judge that the parties have
reached a full settlement and have agreed to dismissal of the action
subject to compliance with the terms of the settlement; or
(3) Inform the administrative law judge that agreement cannot be
reached.
(d) Disposition. In the event a settlement agreement containing
consent findings and an order is submitted within the time allowed
therefor, the administrative law judge shall issue a decision
incorporating such findings and agreement within thirty (30) days of his
receipt of such document. The decision of the administrative law judge
shall incorporate all of the findings, terms, and conditions of the
settlement agreement and consent order of the parties. Such decision
shall become final agency action within the meaning of 5 U.S.C. 704.
(e) Settlement without consent of all parties. In cases in which
some, but not all, of the parties to a proceeding submit a consent
agreement to the administrative law judge, the following procedure shall
apply:
(1) If all of the parties have not consented to the proposed
settlement submitted to the administrative law judge, then such non-
consenting parties must receive notice, and a copy, of the proposed
settlement at the time it is submitted to the administrative law judge;
(2) Any non-consenting party shall have fifteen (15) days to file
any objections to the proposed settlement with the administrative law
judge and all other parties;
(3) If any party submits an objection to the proposed settlement,
the administrative law judge shall decide within thirty (30) days after
receipt of such objections whether he shall sign or reject the proposed
settlement. Where the record lacks substantial evidence upon which to
base a decision or there is a genuine issue of material fact, then the
administrative law judge may establish procedures for the purpose of
receiving additional evidence upon which a decision on the contested
issues may reasonably be based;
(4) If there are no objections to the proposed settlement, or if the
administrative law judge decides to sign the proposed settlement after
reviewing any such objections, the administrative law judge shall
incorporate the consent agreement into a decision meeting the
requirements of paragraph (d) of this section.
