On March 1, 2023, ANP Resolution No. 915/2023 became effective (“RANP 915/2023”), establishing the parameters for defining the hypothesis for recidivism and prior records, among other topics, to regulate the enforcement of Law No. 9.847/1999.
RANP 915/2023 revokes ANP Resolution No. 08/2012 (“RANP 08/2012”) and adjusts the mechanisms for the application of administrative sanctions. The main topics addressed by the resolution are:
i. The time frame to constitute recidivism and a revised concept of secondary recidivism;
ii. The application of the same criteria to disregard previous infractions in case of recidivism and prior records; and
iii. The inclusion of criteria to apply suspension and revocation sanctions.
Recidivism is defined as an infraction occurred after the final unappealable administrative decision that resulted in the application of a penalty for any infraction set forth under Law No. 9,847/1999.
Recidivism will occur in case:
a. The subsequent infraction is committed within six months after the payment of the fine with waiver of right to appeal;
b. The subsequent infraction is committed within two years after the full payment of the fine; or
c. The subsequent infraction is committed within five years after the final unappealable administrative decision.
Secondary recidivism occurs when an infraction is committed after a final administrative decision regarding an infraction that has been characterized as recidivism.
In comparison with RANP 08/2012, the new regulation extended the time frame for item ‘c’ above – originally set as two years. Although RANP 915/2023 has changes in the wording compared to RANP 08/2012, there were no relevant changes in the definition of secondary recidivism.
Prior record is defined as a final unappealable administrative decision that has penalized the economic agent for any infraction set forth in Law 9,847/1999, in the exercise of the same regulated activity of the infraction under trial.
According to RANP 915/2023, prior records will occur in the same cases foreseen for recidivism, except if they have already been considered as recidivism or secondary recidivism.
Previously, RANP 08/2012 established that prior record would only occur when there was a final conviction within 5 years prior to the conclusion of the proceeding's discovery phase, except for convictions considered as recidivism.
Suspension and Revocation
The sanctions of temporary suspension of operation and revocation of authorization are established by Law No. 9,847/1999, as a way to penalize agents for more critical infractions. RANP 915/2023 innovates by establishing the criteria for the application of such sanctions, not covered by RANP 08/2012.
The first temporary suspension of an installation or facility may vary from 10 to 15 days, while the second suspension will last for 30 days.
The revocation of the authorization will be enforced against the agent that has already been penalized with the 30-day suspension.
A new 30-day suspension will be applied in case two or more years have elapsed between the date when the first 30-day suspension was applied and the date of the infraction.