It should be recalled that coercive fines are enforcement measures that the public administration uses to ensure compliance with an administrative act and are imposed in the event of noncompliance by the administered party.
According to the OEFA's Regulations of the Administrative Sanctioning Procedure[1], failure to comply with precautionary and corrective measures results in coercive fines imposed automatically and without prior notice.
The Methodology foresees four scenarios for the calculation of the penalty payment (each with its own formula), as follows:
| Rule 1 |
When there is information on the level of risk associated with the administrative measure or its noncompliance.
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| Rule 2 |
When there is no information available to estimate the level of risk associated with the administrative measure or its noncompliance, and the determination of the coercive fine is made during the supervision stage.
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| Rule 3 |
When there is insufficient information to estimate the level of risk associated with the administrative measure or its noncompliance and the fine is determined at the inspection stage, the amount calculated during the administrative sanctioning procedure, available at the time the coercive fine is issued, will be taken as a reference.
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| Rule 4 |
For the calculation of coercive fines applicable to public entities that provide services for the benefit of citizens, with no exceptions.
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Additionally, the rules provide that adjustment factors will be used to determine the amount of the minimum fine, adapting it to the specific circumstances of each case that may aggravate the environmental impact in the case of noncompliance with an administrative measure. These factors are considered in rules 1, 2 and 4. Among the factors are (i) factors associated with the level of risk, (ii) vulnerability, (iii) socio-environmental conflict and (iv) reversibility or recoverability.
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We hope this information is of relevance to you and your company. Please do not hesitate to contact us if you require any advice in this regard.
1 Approved by Resolution of the Board of Directors No. 027-2017-OEFA-CD.
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