Editorial Note on Part 386
Editorial Note: Nomenclature changes to part 386 appear at 65 FR 7755, Feb. 16, 2000, and 88 FR 80182, Nov. 17, 2023.

§ 386.22 Settlement agreements and their contents. ( a ) *Settlement agreements.* ( 1 ) When negotiations produce an agreement as to the amount or terms of payment of a civil penalty or the terms and conditions of an order, a settlement agreement shall be drawn and signed by the respondent and the Field Administrator or his/her designee. Such settlement agreement must contain the following: ( i ) The statutory basis of the claim;
( ii ) A brief statement of the violations;
( iii ) The amount claimed and the amount paid;
( iv ) The date, time, and place and form of payment;
( v ) A statement that the agreement is not binding on the Agency until executed by the Field Administrator or his/her designee;
( vi ) A statement that failure to pay in accordance with the terms of the agreement or to comply with the terms of the agreement may result in the reinstatement of any penalties held in abeyance and may also result in the loss of any reductions in civil penalties asserted in the Notice of Claim, in which case the original amount asserted will be due immediately; and
( vii ) A statement that the agreement is the Final Agency Order.
( 2 ) A settlement agreement may contain any conditions, actions, or provisions agreed by the parties to redress the violations cited in the Notice of Claim or notice of violation.
( 3 ) A settlement agreement accepted and approved by the Agency Decisionmaker or Administrative Law Judge is a Final Agency Order which is binding on all parties according to its terms. Consent to a settlement agreement which has not yet been approved by the Agency Decisionmaker or Administrative Law Judge may not be withdrawn for a period of 30 days.
( b ) *Civil penalty proceedings not before Agency Decisionmaker.* When the parties have agreed to a settlement at any time prior to the case coming before the Agency Decisionmaker, the parties may execute an appropriate agreement for disposing of the case. The agreement does not require approval by the Agency Decisionmaker. The agreement becomes the Final Agency Order upon execution by the Field Administrator or his/her designee.
( c ) *Civil penalty proceedings before Agency Decisionmaker.* When a respondent has agreed to a settlement of a civil penalty before a Final Agency Order has been issued, the parties may execute an appropriate agreement for disposal of the case by consent for the consideration of the Agency Decisionmaker. The agreement is filed with the Agency Decisionmaker, who may accept it, reject it and direct that proceedings in the case continue, or take such other action as he/she deems appropriate. If the Agency Decisionmaker accepts the agreement, he/she shall enter an order in accordance with its terms. The settlement agreement becomes the Final Agency Order as of the date the Agency Decisionmaker enters an order accepting the settlement agreement.
( d ) *Civil penalty proceedings before Administrative Law Judge (ALJ).* When a respondent has agreed to a settlement of a civil penalty before the hearing is concluded, the parties may execute an appropriate agreement for disposing of the case by consent for the consideration of the ALJ. The agreement is filed with the ALJ who may accept it, reject it and direct that proceedings in the case continue, or take such other action as he/she deems appropriate. If the ALJ accepts the agreement, he/she shall enter an order in accordance with its terms. The settlement agreement becomes the Final Agency Order as per § 386.61.
( e ) *Civil penalty proceedings before Hearing Officer.* When a respondent has agreed to a settlement of a civil penalty before the hearing is concluded, the parties may execute an appropriate agreement for disposal of the case for the consideration of the Hearing Officer. The agreement is filed with the Hearing Officer, who, within 20 days of receipt, will make a report and recommendation to the Agency Decisionmaker who may accept it, reject it and direct that proceedings in the case continue, or take such other action as he/she deems appropriate. If the Agency Decisionmaker accepts the agreement, he/she will enter an order in accordance with its terms. The settlement agreement becomes the Final Agency Order as of the date the Agency Decisionmaker enters an order accepting the settlement agreement.
[70 FR 28482, May 18, 2005, as amended at 78 FR 58481, Sept. 24, 2013]