The Ministry of the Environment, IBAMA and ICMBIO published Joint Normative Instruction (INC) MMA/IBAMA/ICMBio nº 1 of 2021, published in the Federal Official Gazette last Wednesday (April 4), which updated the rules regarding the federal administrative proceedure for administrative infractions related to due harmful conducts and activities to the environment.
In addition to revoking INC No. 02/2020, the new INC aims to speed up the environmental administrative procedure, establishing shorter deadlines for scheduling conciliation hearings and analysis of administrative defenses and appeals. Please find below the main aspects foreseen in the INC:
- The Environmental Inspection Report prepared by the federal environmental agent must contain, in addition to the evidence of authorship and materiality, a description of the causal link between the alleged infringement situation and the conduct practiced by the violator.
- The analysis of regularity and the consequent interlocutory decision of possible precautionary measures is a responsibility of the hierarchically superior authority of the federal environmental administrative unit at the location of the infraction within a maximum period of 5 days, which can be extended for an equal period as long as it is justified.
- The hierarchically superior authority of the federal environmental administrative unit at the location of the infraction is responsible for carrying out the notification of the violator, which must be issued within 5 days, after receiving the administrative proceeding.
- After the issuance of the infraction notice, the head of the federal environmental administrative unit must inform the Public Prosecutor’s Office about the found violation.
- The conciliation hearing will be automatically scheduled to take place within a maximum period of 30 days after the receipt of the Infraction Notice, and the violator must inform if has interest in the hearing, by means of a written petition forwarded electronically, until the business day preceding the date scheduled for the hearing. Petitions of interest from the violator may be filed regardless of notification. In the absence of a manifestation, the conciliation hearing will be waived.
- The INC also foresees the rescheduling of the conciliation hearing for a date not exceeding 15 days from the date it was initially designated. Exceptionally, it may be designated a complementary hearing, only once, to be held within up to 15 days after the initial hearing, in the event of interruption due to the high degree of complexity of the assessment or the occurrence of technical-operational issues. The conciliation hearing may take place in person or electronically.
- Once the environmental conciliation is over, the violator will still be able to choose electronically one of the legal solutions to closure the procedure such as the payment with discount, the installment payment and the conversion of the fine into services for the preservation, improvement and recovery of the quality of the environment.
- The fluency of the 20-day deadline to file defense will be suspended by scheduling the environmental conciliation hearing and its course will start from the date of its conclusion. The competent judging authority must issue a reasoned decision no later than 30 days after receiving the administrative records for analysis. The deadline for administrative appeal remains 20 days counted from the knowledge of the first level administrative decision.
- There is a new definition of specific and generic recidivism, which will be assessed based on the committing of a new environmental infraction capitulated under the same infraction (specific recidivism) or different (generic recidivism).
The Joint Normative Instruction came into effect on the date of its publication.
Our Environment and Sustainability team is on hand to provide further clarification on the topic.