Technical Note GU (05 and 06/2021)

The GU is the exceptional authorization to extract mineral substances in an area already covered by a mining title, before the Development Concession is granted, subject to prior authorization from the ANM (art. 22, §2 of the Mining Code; art. 24 of Decree No. 9.406/2018). It is regulated by Ordinance No. 155/2016, which set out the list of substances, maximum quantities, application rules, analysis parameters, validity term, grounds for suspension/extinguishment, and the titleholder’s obligations. ANM Resolution No. 37/2020 significantly updated these rules, aiming for simplification and reduced bureaucracy. The Resolution is an amending rule with no independent existence, so any future adjustment always refers back to Ordinance No. 155/2016, which remains in force.

The term begins counting from the date of publication in the Federal Official Gazette (DOU), not from the date of the request. The maximum term is 3 years, extendable once for up to an equal period (up to 6 years in total). Effectiveness, meaning when the GU actually starts producing legal effects and allows extraction, only begins once the Operating License (LO) is obtained and submitted to the ANM. In other words, a GU can be in force yet not effective while the environmental license has not been issued.

No environmental license needs to be presented to issue the GU. But it only actually takes effect once the Operating License (LO) is obtained. After obtaining the LO, the titleholder has 10 days to submit it to the ANM. If it is not submitted, the request is denied or, if the GU has already been issued, it is cancelled. If the titleholder already holds a valid LO at the time of the request, the term and effectiveness begin together. The LO must mention the GU’s substance(s), be issued in the name of the GU’s titleholder, and have a validity period compatible with it; if there is a change of titleholder, the LO must be resubmitted in the new titleholder’s name.

The correct term is extension, not renewal (renewal could suggest a change in the conditions, such as the volume per year). Extension means extending the term under the same conditions as the originally granted license, and it is only allowed once. To request it, the partial (or final) report of the exploration activities already carried out must be submitted, including extraction data. GUs issued before 08/06/2020 (the date of Resolution No. 37/2020) cannot be extended; the titleholder needs to request a new GU, which will then be entitled to one extension.

Yes. In these cases, after the technical review, the case is forwarded to a higher ANM authority (the Collegiate Board, or whoever holds that delegated authority), which issues the final decision.

A technical-economic report signed by a qualified professional (describing the deposit, the extent of the area, stripping/blasting/loading/transport operations, disposal of materials, environmental and safety measures); the quantity requested for each substance and the intended term; maps, plans, photos and images of the area’s current condition; proof of fee payment. Accepted formats: PDF for text/images; .bil, .bsq, .dat, .img, GeoTIFF, JPEG2000 for georeferenced images; Shapefile (.shp) and CAD (.dxf) for vector data. Links to cloud storage repositories are not accepted.

It is tied to the mining case file. In the event of an assignment of rights, the terms of the GU in force are maintained, and a Certificate is issued to the assignee upon request.

Yes, as long as the RFP has already been submitted within the deadline. However, if the RFP is not approved (or the request to extend the Exploration Permit is denied), a GU already issued must be cancelled immediately.

Validity means the act has completed all the steps required to exist legally. Term is the period during which the act remains in the legal system, counted from its publication. Effectiveness is the current capacity to produce concrete effects; an act can be in force without yet being effective, if it depends on a condition, such as the environmental license in the case of the GU. Based on Carvalho (2019), Ferraz Júnior (2003) and case law from the Superior Court of Justice (STJ).

Extracting minerals under a valid GU but without a valid environmental license is considered illegal exploitation. If the applicant is identified as the party responsible for illegal exploitation that has already been investigated (and reported to oversight bodies), this prevents the issuance of a new GU, but only for that specific case. If the illegal exploitation was carried out by a third party and has already been investigated, the GU can be issued normally. Common situations include: the titleholder itself having extracted without authorization; the titleholder reporting a third party’s illegal exploitation; or the titleholder submitting a remediation license that indicates prior irregular activity. In all cases, an investigation is opened with the right to a defense, which may result in a Conduct Adjustment Agreement (TAC).

Since Resolution No. 37/2020, Regional Managers hold this authority, except in cases involving a substance or quantity outside the table, which go to a higher authority.

The general rule is that new regulations apply to ongoing cases, provided that vested rights and completed legal acts are respected. In practice, GU requests made before 08/06/2020 can also be issued without requiring an environmental license, following the same term/effectiveness rules, so as not to treat those who applied earlier and those who applied later unequally (the principle of isonomy, under the Economic Freedom Act). This follows a broader legal principle, similar to criminal law: more favorable administrative rules can apply retroactively to benefit the party involved. Important: regardless of how many GUs the titleholder held before the Resolution, they do not count toward the one-extension-only rule; that only applies to licenses requested from 08/06/2020 onward.

In 2020, the ANM revised the GU rules, driven by the Economic Freedom Act (Law No. 13.874/2019) and Decree No. 10.178/2019, which call for simplifying procedures involving low or moderate risk; the GU was classified as moderate risk. The simplification reduced subjectivity in interpretation, removed the in-person inspection requirement, and decoupled the GU from the environmental license. The questions about how to apply it that came up afterward led to a dedicated working group, which produced these two Technical Notes to standardize the understanding until a new Normative Instruction formally revises the topic.