Consent findings and agreements

The administrative law judge has discretion to allow negotiation time after weighing the public interest and case-specific factors. Under 1955.20(a), the judge considers:

• the requirements of section 18 of the Act;
• the nature of the proceeding;
• the requirements of the public interest;
• the representations of the parties; and
• the probability that an agreement will result in a just disposition of the issues.

These considerations guide whether and for how long negotiation time will be allowed.

Parties may be given a reasonable opportunity to negotiate a consent agreement at any time during the proceeding. 1955.20(a)(1) allows the administrative law judge to permit negotiations during the proceeding and to set the duration of that opportunity in the judge’s discretion.

A consent agreement must state that the rule or order has the same force and effect as if it had been made after a full hearing. 1955.20(a)(2)(i) requires this explicit provision so the agreement is enforceable like a decision reached post-hearing.

When parties enter such an agreement, they waive any further procedural steps before the administrative law judge and the Secretary. 1955.20(a)(2)(ii) requires that the agreement include this waiver so no additional procedures are pursued after submission.

No — parties must waive any right to challenge or contest the validity of the findings and the rule or order made under the agreement. 1955.20(a)(2)(iii) requires that the agreement contain this waiver.

When the negotiation time expires, the parties or their counsel may either submit the proposed agreement to the administrative law judge or inform the judge that no agreement was reached. 1955.20(b)(1) lays out these two options explicitly.

The parties or their counsel may submit a proposed consent agreement to the administrative law judge on or before the expiration of the time granted for negotiations. 1955.20(b)(1)(i) specifies that submission must occur within the allowed negotiation period.

If parties cannot reach an agreement, they must inform the administrative law judge that agreement cannot be reached by the expiration of the negotiation time. 1955.20(b)(1)(ii) requires that the judge be notified when negotiations fail.

If a timely consent agreement is submitted, the administrative law judge may accept it by issuing a decision based on the agreed findings. 1955.20(b)(2) authorizes the judge to base the decision on the agreement and directs that such a decision be published in the Federal Register.

A consent agreement may dispose of the whole or any part of the proceeding. 1955.20(a)(1) explicitly allows agreements that resolve part or all of the issues in a proceeding.

The administrative law judge decides the duration of negotiation time, guided by statutory and case-specific factors. 1955.20(a) states the judge exercises discretion after considering section 18 of the Act, the nature of the proceeding, public interest, party representations, and the likelihood of a just resolution.

After the judge accepts an agreement, the decision based on the agreed findings is published in the Federal Register. 1955.20(b)(2) requires publication of the judge’s decision reflecting the consent agreement.

Any such agreement must include waivers of further procedural steps and of any right to challenge the findings or the rule or order. 1955.20(a)(2)(ii) and 1955.20(a)(2)(iii) require these explicit waivers in the agreement.

A valid consent agreement must assure (1) the rule or order has the same force as if made after a full hearing, (2) parties waive any further procedural steps, and (3) parties waive the right to challenge the findings or order. 1955.20(a)(2)(i), 1955.20(a)(2)(ii), and 1955.20(a)(2)(iii) together set these requirements.

The parties make representations about the prospects for an agreement, and the judge considers those representations when deciding whether to allow negotiation time. 1955.20(a) lists the parties’ representations as one factor the judge must weigh.

Yes — either the parties themselves or their counsel may submit the proposed agreement to the administrative law judge within the negotiation period. 1955.20(b)(1)(i) authorizes submission by parties or their counsel.

No — the administrative law judge may accept a timely submitted consent agreement but is not required to do so. 1955.20(b)(2) states the judge may accept the agreement and issue a decision based on it, indicating acceptance is discretionary.

A rule or order issued under a judge-accepted consent agreement has the same force and effect as if it had been made after a full hearing. 1955.20(a)(2)(i) requires the agreement to state this equivalence explicitly.

If parties inform the administrative law judge that an agreement cannot be reached within the time allowed, the case proceeds without a consent agreement under whatever further procedures the judge directs. 1955.20(b)(1)(ii) requires the parties to notify the judge when negotiations fail, after which normal procedures continue.

Yes — the judge may allow negotiations that aim to settle the whole or any part of the proceeding. 1955.20(a)(1) permits agreements disposing of all or part of the issues.