OSINERGMIN: Adoption of the Methodological Guide for the Calculation of the Base Fine
On Saturday, June 12, 2021, Resolution Nº 120-2021-OS/CD was published in the Official Gazette “El Peruano”, whereby the “Methodological Guide for the Calculation of the Base Fine” (“Methodological Guide”) was adopted.
The Methodological Guide aims to establish the applicable methodology for the calculation and graduation of the Base Fine, as provided for in Article 26.3 of the “Regulation of Control and Sanction of OSINERGMIN” (“RFS”), adopted by Resolution Nº 208-2020-OS/CD. It must be recalled that the RFS came into force together with the Methodological Guide, the day after its adoption and publication.
In this sense, the Methodological Guide aims to provide greater predictability to agents that develop activities in the energy and mining sector, as regulated by the RFS, in relation to the criteria and components to be considered by the competent authorities of OSINERGMIN for the determination of the base fine, as part of the process of grading the fines described in the Classification of Infractions and Scale of Fines of OSINERGMIN. When the fine has ranges or limits of application, the corresponding mitigating and aggravating factors set forth in Article 26 of the RFS shall be applied.
Thus, it is established that the calculation shall consider (i) the economic benefit for non-compliance arising from the infraction, considering the avoided cost and/or the delayed cost, (ii) the percentage of the damage caused by the infraction, which involves the assets of the third party agents affected, as well as the life, integrity or health of third parties, which is close to the Value of Statistical Life (“VVE”), and (iii) the probability of detection of the infraction for each control period foreseen in the Annual Monitoring Plan or other management instrument, considering the effort and probability of control. In addition, the formula for the calculation varies according to the scenario in which the infraction has been committed, being ExAnte, that is, when an accident has not yet occurred; or ExPost, that is, when the control action is carried out because of an accident.
Finally, the Methodological Guide provides that the administrative sanctioning procedures that are in the process of entry into force of the same and of the RFS, shall continue to use the provisions in force at the date of the commission of the infringements, except for those that are more favorable to the inspected agent.
It is worth mentioning that by means of this Resolution, Resolutions Nº 035-2018-OS/CD and 057-2019-OS/CD were amended regarding the competent authorities for the imposition of administrative measures in the energy and mining sectors; as well as the RFS itself, since it was considered important to make some clarifications in said regulation, aimed at its better compliance and implementation.
For further information, please contact Verónica Sattler (firstname.lastname@example.org), and/or Alejandro Manayalle (email@example.com), and/or Álvaro Klauer (firstname.lastname@example.org).