By Manoel O. de Vasconcelos Neto and Guilherme de Castro Souza.
Read the full article: https://seednews.com.br/artigos/4682-o-autocontrole-relativo-a-sementes-e-mudas-edicao-marco-2025
Law No. 14,515, dated December 29, 2022, brings a new perspective on private agents regulated by agricultural defense (DA), especially concerning the way official inspection and supervision bodies operate.
Among the measures contemplated within the Law, the following stand out:
- the self-control programs of private agents regulated by DA;
- the compliance incentive program;
- the procedures applied by DA to agents in the agricultural production chains; and
- the special appeal commission.
The “Self-Control Law,” as Law No. 14,515 of 2022 has come to be called, aims primarily to make the activities of the Agricultural Defense Secretariat of the Ministry of Agriculture and Livestock (SDA/MAPA) more efficient in ensuring the safety, quality, security, and identity of production, granting MAPA a less interventionist role, all with one great goal: protecting third parties that might be affected by agro-industrial production.
SELF-CONTROL PROGRAMS
Regarding self-control programs, it is known that their development and implementation depend initially on normative measures under MAPA’s responsibility, with special mention to those outlined in article 10 of the Law:
“ART. 10. IT IS THE RESPONSIBILITY OF MAPA:
- establish the basic requirements necessary for the development of self-control programs;
- issue supplementary regulations to provide for the basic requirements referred to in item I of this article;
- define the official procedures for verifying self-control programs.”
Another point to highlight is § 4 of article 8, which establishes as mandatory for the productive sector (private agents) to develop guidance manuals for the preparation and implementation of self-control programs.
Therefore, we can conclude that the preparation and implementation of self-control programs depend essentially on:
- MAPA establishing the basic requirements; and
- the representative entity of the seed and seedling sector developing the guidance manual.
As seen, the law created a dependency chain, where the subsequent link can only be implemented after the previous one is in place.
In short, without the MAPA regulation, it is impossible to develop the Guidance Manual. And without the MAPA regulation and the Guidance Manual, it becomes impossible for the private agent to develop Self-Control Programs due to the lack of broader regulation.
When implementing self-control programs, special attention must be given to § 1 and § 5 of article 8:
“§ 1. Private agents regulated by DA legislation will ensure the implementation, maintenance, monitoring, and verification of the self-control programs referred to in the caput of this article.” (emphasis added)
“§ 5. Self-control programs will be defined by the establishment and must meet, at a minimum, the requirements defined in legislation, and it is the responsibility of agricultural inspection to verify compliance with the self-control program of the company.” (emphasis added)
From reading these two paragraphs, it is concluded: it is up to the establishment (private agent) to define its self-control program. However, this prerogative does not exempt agricultural inspection from verifying compliance with the self-control program of the establishment, which is possibly the essence and biggest challenge of self-control: redirecting the focus of inspection and agricultural supervision from a predominantly punitive action to a more educational approach.
Once again, this depends on normative measures by MAPA, this time defining the official procedures for verifying self-control programs. Without clear, objective, and transparent verification procedures, the regulated sector is at the mercy of the subjectivity of public inspection and supervision agents.
The establishment of these parameters is crucial to ensure legal certainty for the productive sector, seeking to reduce the broad discretion and interpretive margin of inspection and agricultural supervision agents, who often bring divergent interpretations of the same facts. To achieve the desired legal certainty, the interpretive parameters of the regulation must be established at the national level by SDA/MAPA, with inspection and supervision agents restricting their actions to the enforcement of the regulation.
Self-control is not a program of good practices, quality control, or even traceability. In practice, it is nothing more than a type of pact between the establishment and the supervision, in which the establishment commits to act transparently, comply with norms, standards, and pre-established compliance requirements, and record and self-correct deficiencies or non-compliances found during each stage of the production process.
For the seed and seedling sector, a sector dominated by excessive bureaucracy based on rigid and detailed norms, laws, and regulations, self-control, at least for a large part of the producing establishments, should initially be limited to compliance with legislation, leaving the addition of new compliance parameters to a later stage.
The creation of a standard of excellence should be gradual and with the utmost care, under the risk of disrupting this important production chain.
And, in this context, compliance becomes the key word that permeates the entire production process of seeds and seedlings.
COMPLIANCE INCENTIVE PROGRAM
The Compliance Incentive Program (PIC) aims to consolidate an environment of mutual trust between the Federal Executive Branch and regulated agents through increased transparency.
Unlike the self-control program, the participation of the private agent in the PIC is not mandatory. On the contrary, to participate in the PIC, the adhering agent will be required to periodically share operational and quality data with agricultural supervision, with the data to be defined by MAPA.
Participation in the PIC provides the private agent, in addition to other benefits that may be established in regulations, with the following benefits and incentives:
- agility in import and export operations;
- priority in processing administrative processes;
- automatic access to information on process progress.
In addition to the benefits and incentives mentioned above, the agent adhering to the PIC is authorized to regularize by notification.
Thus, the notified establishment, provided it adopts the necessary corrective measures and remedies the irregularity or non-compliance within the period indicated in the notification, will not be fined.
It is important to note that the implementation of the PIC depends on the issuance of a regulation decree establishing, among other measures:
- procedures for joining the Program;
- obligations for staying in the Program; and
- cases for applying warnings, suspensions, or expulsions from the Program.
On the other hand, the law authorized MAPA to adopt a risk classification system for private regulated companies for inspection purposes, based on performance in self-control programs and the PIC (article 16), thus dispensing with the issuance of a decree to regulate this matter.
In the text above, a new element emerges to guide the actions of inspection and supervision – RISK. This is one of the key, if not the primary, aspects of the new approach that seeks to implement inspection and supervision based on strategies to optimize their actions.
PROCEDURES APPLIED BY AGRICULTURAL DEFENSE TO AGENTS IN PRODUCTION CHAINS
The new law universalizes the procedures applied by DA to agents in the agricultural production chains.
What does this mean?
- MAPA will adopt simplified administrative procedures for the registration of establishments and products;
- establishments and products with multiple purposes and subject to different DA regulations may have a single registration with MAPA;
- product labels will not require approval from MAPA.
This standardization brings greater predictability and ease for private agents to exercise their right to broad defense and contradiction, as the path to follow during the administrative process has become clearer.
As defined by the law, infractions will be applied and graded according to the risk for DA. They can be classified as light, moderate, severe, or very severe.
The administrative process, addressed in Chapter VII – The Administrative Process of Agricultural Supervision, creates three administrative levels for judging infractions:
1st INSTANCE: Federal Agriculture Superintendency (SFA), located in the Federation Unit where the infraction was detected.
At this point, there are no significant changes. The first-instance judgment remains the responsibility of the SFA of the unit where the infraction was detected.
2nd INSTANCE: SDA of MAPA.
As in the first instance, there is no change regarding the second-instance judgment. As before, the authority at the national level (SDA) will judge the appeal presented by the infringing agent.
3rd INSTANCE: Special Appeal Commission for Agricultural Defense (CERDA).
Here lies the major innovation: the creation of a collegiate body for the judgment of cases, in the event of disagreement with the decision made by the second-instance authority.
CERDA constitutes the last administrative level of appeal in the agricultural inspection administrative process.
In this third and final instance lies the major innovation brought by the Law: firstly, because administrative decisions only had two levels of judgment – all within the internal administrative sphere of MAPA, where decisions on infraction notices, both first-instance (SFA Superintendents) and second and final instance (SDA heads), were made unilaterally. Secondly, because of the unprecedented inclusion of representatives from the private sector in a last-instance administrative appeal chamber, as we will see below.
COMPETENCIES OF CERDA
Through Resolution CERDA/MAPA No. 1, of May 13, 2024, published in the DOU on 05/16/2024, MAPA approved the Internal Regulations of CERDA.
According to the Annex of Resolution CERDA/MAPA No. 1/2024, the Special Commission is responsible for:
- receiving, acknowledging, and judging administrative appeals in third and final instances in agricultural supervision administrative processes;
- deciding on the conversion of penalties for suspension or revocation of registration, registration, or accreditation into fines;
- deliberating on impediments and suspicions alleged by appellants regarding members;
- deciding on changes to the judgment agenda.
The CERDA of MAPA consists of five regular members and five alternate members, as follows:
- two regular members and two alternates from MAPA;
- one regular member and one alternate from the Ministry of Justice and Public Security; and
- one regular member and one alternate from the National Confederation of Industry (CNI); and
- one regular member and one alternate from the Confederation of Agriculture and Livestock of Brazil (CNA).
In other words, of the five members, three are external to MAPA, with two of them coming from representative entities of the private sector.
The inclusion of private sector representative entities in the composition of CERDA will certainly bring fresh perspectives and provide greater transparency in the final phase of judgment in administrative inspection processes for administrative infractions.
Finally, it is important to highlight a mechanism of utmost importance for Brazilian productive activity. The possibility of entering into a Conduct Adjustment Agreement (TAC) to convert penalties of suspension of registration, listing, or accreditation, or the penalty of cancellation of registration, listing, or accreditation into a fine.
This measure is in line with the fundamental principles that govern economic activity, especially the principle of business preservation. A company, as a legal entity, does far more than deliver results to its owners and/or shareholders. Allowing it to have its registration suspended or canceled is to fatally harm the activity it performs, going beyond the individual punishment of the agent and affecting a collective that bears no responsibility for the infractions committed. Therefore, the possibility of a TAC will provide greater security for the collective.
As with many other aspects of this law, the TAC still requires regulation, which is of great importance. This is because the TAC should not become a tool for impunity by the infringing private agent, but rather a means to ensure the continuity of productive activity.
