On May 24, 2022, the Brazilian Federal Government published Decree No. 11.080/2022, modifying Decree No. 6,514/2008 to adjust the federal administrative procedures for investigating environmental infractions. In general, these adjustments are new provisions or reflect provisions that already existed in other regulations.
One of the changes applies to the initial stage of the investigation, when purported transgressors are given the opportunity to attend a settlement hearing rather than submit an administrative defense to an environmental agency. The new decree exempts environmental agencies from having to automatically schedule a settlement hearing or from having to notify transgressors to state their interest in a hearing. Pursuant to the new rules, it is up to the transgressor—regardless of notification from the agency—to request a hearing within 20 days from the date of receipt of the infraction notice.
Another change pertains to the procedure for increasing fines due to recidivism. Previously, a first-level decision on a previous infraction notice was sufficient to trigger recidivism in the event of a new infraction notice. Under the new decree, recidivism can only be triggered once there is a final decision issued for the first infraction notice and the decision is that an infraction had been committed. The new regulation also eliminates the procedural requirement that the environmental agency attach a copy of the first infraction notice to the dockets for the alleged new infraction. Now, basic information regarding the previous fine is sufficient for evidencing recidivism.
Other changes worth mentioning include (i) a provision stating that an environmental fine cannot exceed BRL 50 million, including monetary correction and interest; (ii) confirmation that appeals cannot be submitted to the National Environmental Council (CONAMA); (iii) the introduction of a new type of environmental infraction—the transport or trade of products originating from deforestation areas; and (iv) a provision stating that electronic subpoenaing is now allowed, regardless of whether the transgressor agrees to it.
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