USER GUIDE (GU): UNDERSTANDING MINERAL EXTRACTION BEFORE CONCESSION

Utilization Guide (GU): Understanding Mineral Extraction Before Concession

The Utilization Guide (Guia de Utilização – GU) is a regulatory instrument provided for in Brazilian mining legislation that allows, on an exceptional basis, the extraction of mineral substances before the granting of a Mining Concession (Concessão de Lavra). Its legal basis is found in Art. 22, § 2º of the Mining Code (Decree-Law No. 227/1967) and Art. 24 of its Regulation (Decree No. 9.406/2018), detailed in ANM’s Normative Consolidation (originating from DNPM Ordinance No. 155/2016 and its amendments, notably ANM Resolution No. 37/2020).

What Justifies the Exceptional Nature of the GU?

The GU is not an automatic right for the holder of an Exploration Permit (Alvará de Pesquisa), but an authorization granted in specific situations. According to Art. 102, § 1º of the Normative Consolidation (as amended by Resolution No. 37/2020), the situations considered exceptional for GU issuance are:

1. Assessment of Technical-Economic Viability: Allowing the extraction of a limited amount of ore to verify its acceptance in the national or international market and confirm the feasibility of future mining.
2. Industrial Analysis and Testing: Extracting samples in sufficient volume to perform industrial tests that support the development of the production process, prior to the definitive concession.
3. Commercialization Linked to Public Policies: At ANM’s discretion, allowing the commercialization of mineral substances before the concession, provided it aligns with specific public policies. § 2º of the same article details the conditions considered for this purpose, such as:

• Formalization and strengthening of Micro and Small Enterprises (National Mining Plan – 2030).
• Promotion of small and medium mining development (mineral extension, formalization, cooperativism, local productive arrangements).
• Research of strategic minerals (National Mining Plan – 2030).
• Guaranteeing the supply of inputs for infrastructure, agriculture, and civil construction.
• Investments in sectors relevant to the Brazilian Trade Balance, containing substances necessary for local/regional development.
• Projects promoting export diversification and strengthening medium-sized enterprises in the international market.

Who Can Apply and When?

The GU can only be requested by the holder of a valid Exploration Permit. The application period extends from the granting of the Permit until the mining concession application phase.

Substances and Quantitative Limits

Extraction via GU is limited to substances and maximum annual quantities specified in Annex IV of the Normative Consolidation. The list is extensive and includes everything from aggregates (sand, crushed stone) to metallic ores (iron, bauxite, copper), gems (diamond), and industrial minerals (feldspar, kaolin, limestone).

It is crucial to observe these limits. However, the sole paragraph of Art. 103 (as amended by ANM Resolution No. 131/2023) allows the ANM Collegiate Board to grant GU for other unlisted substances or for quantities exceeding those in Annex IV, provided the request is duly justified technically and economically.

How to Apply for a GU?

The application must be made electronically through ANM’s Digital Protocol, using the “Solicitar Guia de Utilização” service. The application must be accompanied by essential documents, detailed in Art. 104 of the Normative Consolidation:

1. Technical-Economic Declaration: Prepared and signed by a qualified professional (with ART – Technical Responsibility Annotation), describing at least: potential deposits, area extent, operations (stripping, drilling, loading, transport, beneficiation), material disposal system, environmental control, rehabilitation, safety, and health.
2. Quantities and Term: Indication of the quantity to be extracted per substance and the requested validity period (observing the legal limit).
3. Maps and Cartographic Documentation: Plans, photographs, and images detailing the current situation of the area and its surroundings (land use, geology, drainage, municipal limits, buildings, protected areas, planialtimetric charts, digital terrain model, satellite/radar/aerial images), georeferenced in SIRGAS 2000 (UTM or Geographic), in DXF/SHP (vector) and GeoTIFF (raster) formats. The topographic plan must have a minimum scale of 1:1,000.
4. Proof of Payment: Payment of fees (emolumentos) established in Annex II of the Normative Consolidation (value updated periodically by ANM, see Resolution No. 58/2021 which set the value at R$ 6,889.51).

Analysis and Conditions

ANM will analyze the request, verifying compliance with requirements (Art. 105): complete documentation, payment of the annual fee per hectare, regularity of the mining process (no grounds for forfeiture), and absence of prior illegal mining by the applicant in the area.

Crucial: Environmental License

The effectiveness of the GU, meaning the period during which it actually allows extraction, is conditional upon obtaining the environmental operating license (Licença Ambiental de Operação – LO) or equivalent document (Art. 107). The license must:

• Mention the substances covered by the GU.
• Be issued in the name of the GU holder.
• Have a validity period compatible with the GU.

The GU’s effective period begins on the date the environmental license is granted. The holder has 10 days after the license issuance to present it to ANM, under penalty of GU cancellation. Extraction without the proper environmental license is considered illegal.

Validity and Extension

According to Art. 24 of Decree No. 9.406/2018, the GU is valid for up to 3 years, counted from the publication of its extract in the Official Gazette (DOU). This period can be extended for an equal term (Art. 120 to 122 of the Normative Consolidation).

The extension must be requested up to 60 days before the current GU expires (Art. 121), accompanied by documents such as an activity report, updated topographic map, new justification (if operational changes occurred), proof of CFEM payment for the extracted material, and proof of payment of the extension fee (Art. 120).

If ANM does not decide on the extension by the expiration date, it is considered tacitly extended for up to 1 year, maintaining the original conditions (Art. 121, § 1º).

Important Note: According to ANM FAQs, GUs issued before ANM Resolution No. 37/2020 cannot be extended; the interested party must apply for a new GU.

Other Considerations

• RAL: Holders of a valid GU are required to submit the Annual Mining Report (Relatório Anual de Lavra – RAL) by March 15th of each year.
• Transfer: The GU is linked to the mining process. In case of assignment of rights (cessão de direitos), it follows the process, and its terms remain valid for the assignee. Partial assignment is more complex as the GU belongs to the original process.
• Illegal Mining: Being identified as the perpetrator of previous illegal mining in the area prevents GU issuance.

Conclusion

The Utilization Guide is an exceptional and temporary tool, subject to strict rules and quantitative limits. It allows for viability assessment or testing before full investment in a Mining Concession, but requires planning, robust technical documentation, compliance with obligations (including RAL and CFEM on extracted material), and, fundamentally, obtaining the environmental license for extraction to occur legally.

Detailed consultation of the mentioned legislation and support from qualified professionals are recommended for the correct preparation of GU applications and their extensions.