Analysis of Regulatory Impact: Brazil in need of a faster pace

The Brazilian State is heavy in various aspects such as taxing, economy participation, funds capture, relative purchase power, among others.

In addition, the Brazilian State is heavy in an aspect common in most Modern States, the regulatory pen.

The Brazilian State is heavy in various aspects such as taxing, economy participation, funds capture, relative purchase power, among others.

In addition, the Brazilian State is heavy in an aspect common in most Modern States, the regulatory pen.

The need for prevention and security in modern societies has been answered with regulatory expansion, which is a worldwide phenomenon that has been happening with greater or lesser intelligence by each of those societies. By greater intelligence it´s worth to say by most productive and subtle (less intervention) possible.

The tool that allows a deeper and more diverse analysis for this intelligent regulation is the Analysis of Regulatory Impact developed with clear and rational processes and with participation of various social factors that are affected directly or indirectly.

Brazil has been searching for implementation and improvement of this tool and in this direction previous governments created the Pro-Reg in cooperation with OECD, an organization that Brazil is now part of.

The Program made Regulatory Agencies and other federal agencies, such as Inmetro, in different degrees, adopt some kind of evaluation and social participation in the creation of the new Regulation.

The Congress has also been proposing in another Project Law in process that the tool that aims regulatory consistency becomes mandatory as in other countries, especially the members of the OECD.

With the breakdown of this Program and verification of the benefits of this type of process in prototyping of upcoming regulations, President Temer searches for its implementation by declaring support to these initiatives in the National Congress and before that, by stimulating the Civil Office in creating a General Guide for the Analysis or ARI, as it is called by the ones who are familiar with it.

In this line of action, on September, 2017 the Civil Office opened a public consultation regarding a Guide minute, that was published this month.

The Guide itself contains advances in the right direction, however, what is particularly bringing attention is the resilience of a administrative mentality opposite to the ARI that seems to be manifested in the analysis.

We participated in the process supporting some clients and it is worth to share what was verified with the presentation of the report of the process of the public consultation produced by the group that is involved.

First, the low social participation, the number of entities of private initiative, companies and public entities is minimal with obvious reduction of both quality and social engagement (53 participants).

Following is the detailed list of the participants in the public consultation:
Others: 19 (36%)
Association or representative entity of the regulated sector: 18 (34%)
Educational and research organization: 5 (9%)
Federal Regulatory Agency: 5 (9%)
Entity or professional category: 3 (6%)
Organization or entity of Direct Administration of Government (Federal, State, Municipal): 3 (6%)
Association or entity of consumer protection: 0 (o%)
Common citizen not attached to any organization: 0 (%)

The participants made 304 contributions and it can be noticed that there was an important alignment in some items that were presented in man manifestations:

ARI mandatory whenever there is normative innovation
Use of international references as analysis basis
ARI standardization in all Agencies
Definition of a mandatory ARI for all regulatory acts independently of Agency name
Mandatory social participation to be informed in all phases
Mandatory feedback regarding contributions

From the proposals from the society 78% were not accepted, 15% were partially accepted, but evaluating the content approved, 5% is not relevant and 5% was understood as inapplicable. 2% of the proposals were accepted and have low impact.

From this data we can extract 2 hypotheses: either the quality of the proposals was low or there was no openness for contributions to the process.

In our opinion, the process itself was lacking both debate mechanisms and openness to society.

We can see from the feedback presented by the group involved in the Guide elaboration was low sensibility to suggestions presented and with highly defensive posture from the text. That resulted in standardized feedback and low acceptance of suggestions offered.

This scenario creates an addicted cycle where the society does not participate because it does not see the result of the participation. At the same time, the public agent gets frustrated due to non-participation of the society.

At our understanding it is of no use to work in a tool if there is no change in posture and more deeply in the culture of the ones that are part of the public power. We will not have a useful State, a facilitator in social and economic development in Brazil while it is not understood that the State does not constitute an end itself but a mean where the client is the society to whom the State exists to server and foster prosperity.

It is valid to know the final guide. It is a well-done work technically and not intended to be discredited.

http://www.regulacao.gov.br/agenciasreguladoras/consulta-publica/consulta-publica-001-2017/encerramento/guia-air.pdf

This article is intended to tease to overcome our cultural heritages and mental models. In this sense we hope you dislike it.

There is no change without discomfort.

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Correia da Silva

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Category: ADMINISTRATIVE, REGULATORY AND ENVIRONMENTAL, Heloisa Rodrigues Itacaramby Bessa

Tags: administrative, brazil, correia dasilva advogados, csa, environmental, regulatory, regulatory impact, slow running

Posted in: 14/06/2019

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Correia da Silva

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