2. Assessment and recommendations to enhance regulatory policy in Brazil

Assessment

The current legal framework in Brazil mandates the implementation of some regulatory policy tools (e.g. RIA) and encourages the adoption of others (e.g. public consultations) as part of a broader strategy to increase the country’s competitiveness and improve the business environment. However, the introduction of these legal instruments is not underpinned by a single, high-level policy statement, such as a law that covers all of the regulatory policy’s tools, institutions, and instruments. This means that Brazil lacks an integrated comprehensive policy framework that supports the design and adoption of a whole-of-government programme on better regulation.

Recently, Brazil overhauled its better regulation efforts with the introduction of the Regulatory Agencies Act (Act No. 13.848/2019) and the Economic Freedom Act (Act No. 13.874/2019). These enactments set the foundations for the adoption of tools such as the regulatory impact assessment (RIA) in the regulatory agencies and ministries and define the obligation for public consultation of regulatory proposals in the regulatory agencies.1 The principles promoted by the Economic Freedom Act (LEF) – protection of economic freedom, good faith and observance of contracts, investments and private property – influence the rationale behind Brazil’s better regulation efforts. This means that a strong emphasis is placed on tools such as administrative simplification of certain procedures and regulations, digitisation of services, and adoption of the RIA. Nonetheless, this approach does not consider the entire regulatory cycle in a holistic way, from the identification of a public policy problem, to the selection of the policy instrument, its implementation, monitoring and ex post evaluation; all of this underpinned by stakeholder engagement activities, and co-ordination and collaboration efforts.

While the Regulatory Agencies Act covers a wider range of regulatory policy tools, such as the obligation to carry out stakeholder engagement activities and to prepare a regulatory agenda, it applies only to 11 regulatory agencies2 in Brazil. However, it is not clear when these tools will be deployed in all the other entities with regulatory attributions in the country. Furthermore, elements such as enforcement and inspection activities and ex post evaluations of regulations remain somewhat relegated across the administration, with individual efforts in certain ministries or agencies.

SEAE’s roles and responsibilities are established in Article 119 of the decree that defines the structure of the Ministry of Economy (Decree No. 9.745/2019). This legal instrument, however, does not include an explicit mandate that ensures that the Secretariat can define the strategy to promote and oversee a whole-of-government approach to regulatory quality. In fact, SEAE’s role and objectives as regulatory oversight body are not contained in a single, high-level document such as a decree or law that guarantees the continuation of the regulatory reform agenda should the political or institutional set up change.

While various regulatory oversight attributions are scattered across several institutions, there is no single mandate that allows each institution to define a long-term strategy for the implementation of the regulatory policy in the country. In particular, SEAE’s role as regulatory oversight body focuses on the assessment of RIAs, which is mandatory for assessments prepared by regulatory agencies and mostly on an ad hoc basis for the ministries. Additional tasks carried out by SEAE include the improvement of the regulatory framework to foster a better business environment and the reduction of the cost of doing business.

On the other hand, much of the administrative simplification and digitisation efforts are under the Special Secretariat of De-bureaucratisation, Management and Digital Government in the Ministry of Economy. The Council for the Monitoring and Evaluation of Public Policies (Conselho de Monitoramento e Avaliação de Políticas Públicas, CMAP) is leading the work in terms of ex post evaluations of public policies financed either by direct spending or by government subsidies, whereas the evaluation of regulatory outcomes will become mandatory in 2022. Furthermore, Casa Civil also has the ability to request and review RIAs of laws and decrees. The review team could perceive the focus and effort of each of these bodies; however, the existence of a gap in co-ordination efforts was evident. In this context, systematic co-ordination and collaboration actions play a key role to ensure that all oversight functions are covered to prevent overlapping responsibilities and foster transparency.3

In addition to the absence of a single, high-level policy statement, such as a law that covers all the regulatory policy’s tools, institutions, and instruments, Brazil also lacks a single, overarching strategy. In particular, the priorities of the administration for the introduction of other regulatory management tools beyond the use of RIA, ex post evaluation and administrative simplification are not explicitly stated. For instance, stakeholder engagement is mandatory for the regulatory agencies covered under Act No. 13.848/2019, but it is not clear when it will be an obligation for all the other institutions that have regulatory powers. In fact, during the fact-finding mission, several stakeholders mentioned that the obligation for carrying out public consultation will derive from the Brazil’s commitments set out in the new annex on good regulatory practices to the Agreement on Trade and Economic Cooperation Between the Government of the Federative Republic of Brazil and the Government of the United States of America Related to Trade Rules and Transparency. External factors, such as an international commitment can be a strong instrument to make use of better regulation tools in the country; as part of a central strategy on the topic.

The lack of an overarching strategy means that it is hard to assess the progress of the regulatory reform efforts. Although SEAE has to prepare a yearly report on its activities (Decree No. 9.745/2019, Art. 119), it focuses mainly on the actions taken to promote economic competition. This means that it is difficult to monitor the performance of the regulatory policy in the country and reduces the accountability of those responsible for the adoption and implementation of the tools. This prevents the identification of low hanging fruit, limits the amount of evidence available to set long-term priorities and reduces the possibility of adjusting the policy strategy when the results are not in line with the targets previously defined.

Recommendations

Brazil could consider allocating most, if not all, oversight functions for better regulation policy to a single body. This would contribute to assure an adequate and permanent supervision of the policy.

The precise location and configuration of this body will depend on many factors, including legal arrangements and administrative traditions; although evidence from OECD countries suggests that a body within a ministry or other area close to the centre of government is very common.

Regardless of the location of this body in the administration, it is paramount that Brazil considers the following elements for the institutional design:

• The body should have a clear and explicit mandate regarding its functions in terms of regulatory policy. Clear roles and responsibilities should be defined explicitly, which should include the organisation of communication channels. This will contribute to creating an overall strategy and ensure consistency of the better regulation policy.

• It is important that the administrative area with these responsibilities have the support of the highest political level to promote a comprehensive policy on better regulation.

• The body should also co-ordinate across agencies and ministries at all levels of government to seek regulatory coherence, as well as to promote better regulation policy at lower levels of government. The body should have an overall perspective that allows it to develop procedures that prevent overlapping or conflicting regulations from coming into force.

• Should core responsibilities of regulatory oversight be located in several entities or administrative areas, Brazil should aim at avoiding overlapping functions and define co-ordination mechanisms clearly.

• The institutional arrangement should provide the development of a consistent and knowledgeable oversight to regulatory policy. The location of the oversight should remain close to the centre of government, shielded from political swings, and should focus on its technical nature.

• When strengthening the oversight function, consideration for digitisation and use of digital platforms and other similar tools may help facilitate the co-ordination functions.

• Ensure that officials in the oversight body(ies) have adequate institutional and technical knowledge and capacities. It is important to ensure that the staff do not frequently change within administrations.

Brazil would benefit from developing a single, high-level document that defines and supports the country’s better regulation policy. Brazil could ensure that the regulatory policy follows a holistic approach, meaning that the policy document considers the entire regulatory cycle. It is important to bear in mind that there is not necessarily a trade-off between the development of more formal policy documents and the actual implementation of the policy.

This policy statement should promote a whole-of-government approach to regulatory policy that considers institutions, tools and public policy objectives. The document should provide a framework with the attributions, co-ordination mechanisms, and objectives of the relevant institutions for better regulation in the country.

Brazil already has in place administrative decrees and legislation mandating better regulation policies and tools for sectoral regulators (Regulatory Agencies Act, 2019) and for the federal government (Economic Freedom Act, 2019). Therefore, if it were to follow a path of progressive development, it would be ideal to pass a general law mandating better regulation policies. While the optimal scenario is to have the high-level statement and policy in a binding document of the highest level such as a law, in the short term and following a gradual approach, it might be relevant to consider other instruments such as a presidential decree, a sectoral planning document, or something similar.

The high-level document on better regulation should be accompanied by a gradual implementation plan with clear prioritisation of goals. The plan could articulate the use of the existing regulatory management tools in a coherent strategy, and introduce those that have yet to be developed widely. The plan could also comprise milestones and policy goals for the short and medium term, which could help assess progress and help rectify the path when necessary. A clear definition and prioritisation of the goals contained in the implementation plan would help agencies and bodies from the direct administration focus their resources more efficiently and ensure that the foundations for the regulatory policy in the country are solid. The plan should also include a strong communication strategy, including channels for monitoring.

In this endeavour, Brazil could benefit from building on the experience of the regulatory agencies to deploy regulatory management tools across the federal government. This could help identify lessons learnt as well as harness support of other regulatory entities in the adoption of regulatory management tools.

Considering the complexity of the federal administration of Brazil, the gradual approach should be underpinned by explicit objectives, in order to hold institutions accountable for their progress in the adoption and implementation of the elements considered in the plan. The oversight body or bodies will play a key role in this supervisory function.

Finally, the role of international commercial treaties in the development of national better regulation policies should be emphasised. An international treaty with a valued trade and investment partner can help stimulate the consolidation of better regulation practices. Therefore, the US-Brazil protocol can be useful to help the implementation of better regulation in Brazil.

Assessment

The mandate to conduct RIA for all central ministries came into force in October 2021. In anticipation of this event, the Ministry of Economy prepared a plan to adopt this obligation within the ministry itself, taking into consideration that this model could help other ministries and bodies implement the RIA. This included issuing draft technical guidelines and the setting up capacity building activities before the obligation was fully in place. The Ministry of Economy also offered advice and help to other ministries and bodies in the federal administration who wish to take advantage of these activities to implement the RIA. However, there is room to improve the implementation plan right from the start of the obligation.

Brazil does not have a roadmap that defines the steps needed to increase the scope of RIA to include the primary laws and decrees drafted by the central government submitted to congress, and to ensure a fully-fledged gate keeping system to ensure that RIA is carried out effectively. Another key aspect is the assessment of whether the threshold to conduct RIA is effective. Currently the threshold is flexible, which is welcome in the very early stages of RIA. However, there is a risk that ministries will impose most regulatory proposals without a regulatory impact assessment. Therefore, SEAE will have the challenge of studying this aspect very carefully and developing a more concrete threshold if necessary (such as a calculator based on impacts).

Conducting an evaluation of the RIA system is key to understanding its progress and shortcomings. While SEAE has developed a multifaceted implementation plan, it has not anticipated how it will evaluate the RIA system. SEAE has not defined the necessary indicators to evaluate the effectiveness of RIA during the first years of implementation. The central question is whether RIA is improving the quality of regulations. Examples of aspects that SEAE can evaluate include the percentage of regulatory proposals subjected to RIA, the volume of participation in public consultation, the extent to which comments during consultation positively improving the regulatory proposals and sophistication in the assessment of costs and benefits. Beyond the specific indicators, the government of Brazil needs to discuss what the general expectations of RIA are.

In addition, the government of Brazil has not clearly defined the allocation of responsibilities when it comes to RIA implementation. Act No. 13.848/2019 on Regulatory Agencies provides the Ministry of Economy, and particularly the SEAE, with attributions regarding the supervision of RIA. Nonetheless, according to SEAE,4 the Secretariat is not in charge of implementing RIA (which is prepared by line ministries). SEAE’s role focuses on providing opinions on the RIAs submitted and on the dissemination of good practices. Thus, there is scope for improvement to ensure that entities have a clear mandate regarding each given function (i.e. supervision of RIAs, implementation and co-ordination of the RIA system) and clearly understand the processes and requirements to minimise friction and maximise compliance.

Brazil has increased the scope of its stakeholder engagement practices, notably through the implementation of Participa + Brazil.5 The latter is a digital platform with open access for public consultation. The introduction of this tool has allowed ministries to expand their own efforts, by increasing the reach of their public consultations through the website, while holding informal consultation with specific stakeholders. While all this is a step in the right direction, the RIA system still has yet not adopted consultation as a core element for the whole federal government.

According to the RIA decree (Decree No. 10.411/2020), ministries are encouraged to conduct a public consultation, but not legally forced to do so. On the other hand, only regulatory agencies have the explicit obligation to do so, as the mandate comes from the Regulatory Agencies Act.6 Consultations carried out by regulatory agencies should last for a minimum period of 45 days, except for matters of urgency and relevance,7 which have to be duly motivated. These consultations must be published on the regulator’s website and all comments received must be published after the consultation period ends. Following the consultation period, the regulator has to publish a position on the comments received but does not have to respond to all individual comments given that the law authorises a reply to several similar points in a consolidated answer. Civil society participants pointed out that it is not always clear how comments are analysed and that regulatory proposals under consultation are not easily retrievable.

Ministries have made progress on increasing the scope of stakeholder engagement activities. For instance, the Ministry of Agriculture stated that the number of regulatory proposals subjected to public consultation has increased from 1% to 20%. In the case of this ministry, the decision of whether or not subjecting RIA to consultation relates to the extent of the impact of the regulatory proposal. The Ministry of Infrastructure also has around 20% of policies published on Participa + Brazil, and it mentioned that this portion is one of the highest among ministries and regulators. One of the initial challenges is to increase the percentage of regulatory proposals subject to consultation and to develop the capacities to analyse all comments when consultations have a high volume of participation.

Additionally, with regard to transparency, although Decree No. 10.411/2020 requires keeping the RIA reports available on the entities’ website,8 the practice of publishing the final RIA is still limited. The publication of the final RIA, along with an explanation of how stakeholders’ comments were taken into consideration or the reasons for rejecting them, can lead to substantial benefits in the quality and integrity of the decision making process for regulatory policy, policy design and stakeholder support. The latter practice is commonplace amongst regulatory agencies under the purview of the Regulatory Agencies Act.

The limited number of regulations and RIAs subjected to public consultation creates a problem of quality and standardisation. More often than not, the materials for consultations are prepared by each ministry and published on their own website. Another problem is that the language tends to be complex and technical, not citizen-friendly, despite the instruction to use simple and accessible language in specific parts of the assessment (e.g. RIA’s executive summary9). More broadly, the quality of public hearings (as a subset of public consultations) varies among and within Ministries. Finally, the wider public does not know RIA, and civil society has not been trained on the subject. If the stakeholders do not understand and follow the RIA, this tool will have limited success.

The objectives of public consultation go beyond receiving comments from stakeholders. This tool helps increase transparency and sheds light on the decisions that governments make. In this sense, consultations are not only useful during the commenting period, but also to have a permanent record of the rationale for selecting a given regulatory decision. This could motivate the introduction of the legal requirement to expand the obligation of subjecting all regulatory proposals to public consultation, even from the initial stage of the regulatory implementation of the RIA system.

Beyond the limited scope of regulatory proposals subject to public consultation, Brazil has not anticipated the introduction of a formalised early consultation mechanism.

ENAP, the public administration school within the Ministry of Economy, leads the capacity building efforts. ENAP has conducted multiple courses on RIA for different ministries of the central government.10 It also provides advice for the elaboration of RIAs when public officials make a specific request. While currently ENAP has been able to accommodate all requests, this might be more challenging in the near future when RIA is fully implemented. According to the Government, ENAP’s external advisors are often selected from among public servants with strong expertise and usually come from regulatory agencies.

In 2021, SEAE published an updated version of the technical guidelines to conduct RIA.11 This guide is very complete, and its scope goes beyond the technical explanation of the RIA elements. The document also sheds light on a variety of subjects including the statement of what a good regulation is, common problems related to the RIA elaboration, sources of data, among others.

The challenge most often quoted during the fact-finding mission is the need to change the culture of most public officials. In practical terms, this means that officials need to adopt the mentality that the RIA process has to start from a very early stage when a policy problem is detected (or even before), and that it is not box-ticking exercise to be done once a draft regulation is ready. RIA is not only about assessing the effects of a regulatory proposal, but it implies having an actual deliberation process on what the problem is and what available regulatory (or otherwise) tools exist to solve the problem. A good practice from the Ministry of Infrastructure is the Governance Manual for Regulatory Impact Assessment,12 which, in turn, is based on a series of guiding documents prepared by the Ministry of Economy. The manual of the Ministry of Infrastructure includes the workflow to elaborate RIA divided into the responsibilities of the regulatory unit, managers and the board of directors.

Brazil could take more advantage of the lessons learned by regulatory agencies and other institutions to make RIA better known. For instance, the federal government could share the experiences of CVM, the financial regulator, which has worked on RIA for over a decade. Another example is ANEEL, who was an early adopter of RIA amongst regulatory agencies. Specialised task forces on RIA can also be helpful. In fact, INMETRO has already set up a team dedicated to the elaboration of RIA, which participated in the training conducted by ENAP. SEAE could draw on this experience and systemise the information. One possible way to introduce a RIA system is by looking at the agencies in which the most advanced skills and the most concentrated external stakeholders are located, and expand to other ministries taking advantage of this experience (OECD, 2015[1]).

RIA should be in proportion to the significance of the regulation. Policy makers should target RIA towards regulatory proposals that are expected to have the greatest effects on society. The depth of the analysis should depend on the significance of the regulation being assessed. RIA, if carried out properly, takes time and resources. To ensure the right focus of the RIA framework, it is advisable to concentrate on the regulatory measures that are the most important and have the greatest impact.

Current RIA arrangements in Brazil do not determine cases where ministries or regulators have to carry out a deeper assessment based on the expected impact of the draft regulation. At the early stages of the introduction of RIA, this flexible arrangement may bring benefits. Moving forward, the need to define proportionality criteria will become pressing, as scarce public resources will have to be targeted properly.

Once a RIA system becomes more mature, performing a quantitative assessment of potential benefits and costs of the alternatives considered in the RIA analysis is always desirable. In this case, quantitative information should be preferred and used in RIA whenever this is practical, and data is available, as quantitative assessments are always superior for the purpose of identifying the option with the highest net benefit. However, there are often limitations for this, such as availability of data and lack of technical skills. Whenever possible (e.g. data is available), one option is to focus the efforts of a quantitative cost-benefit analysis on draft regulations with the greatest expected effect, that is, those above a determined threshold. SEAE will have to carefully supervise the possibility that ministries will avoid quantifying effects when required, and to provide detailed guidance on how to carry out a qualitative assessment in the event that it is the only option.

Having adequate information is essential to quantity effects. However, data collection, management, and analysis is also one of the most quoted challenges when conducting RIA. Anticipating the importance of this matter, Decree No. 10.411/2020 dictates “that bodies and entities will implement specific strategies for collecting and processing data, so as to enable the preparation of a quantitative analysis and, when applicable, a cost-benefit analysis”.13 Individual efforts are already in place, but the challenge is to ensure the effective implementation throughout ministries of systems to collect and share data for impact assessment.

Recommendations

Building on the lessons learned from the gradual introduction of RIA, Brazil would benefit from defining a roadmap with explicit goals for the deployment and adoption of RIA in the public administration as a whole. This roadmap should be a part of the high-level document on better regulation and its plan described above.

Even if the implementation of RIA has been gradual, it is important that the entities in charge of the RIA system and those that will need to adopt this tool are aware of the expectations, requirements and next steps to come. In this sense, the body given the task to co-ordinate the RIA system should clearly communicate the objectives and goals to be attained at each step of the implementation plan. One way to share information with stakeholders in the administration is the information cards developed by the Ministry of Economy, which synthesised key information in a way that is both simple and easy to understand.

The roadmap could include:

• How Brazil plans to include in the RIA discipline all types of regulations emanating from entities belonging to the executive power

• Objectives, milestones and goals to be achieved in the adoption of RIA

• Monitoring and evaluation mechanisms to evaluate the RIA system against the goals defined in the roadmap. For this, it will be necessary to define the data that will be required to assess these goals and ensure that the relevant parties systematically collect the information.

• Clearly defined co-ordination and collaboration mechanisms within, and throughout agencies and ministries.

As part of the designation of one or several bodies as oversight entities for better regulation, Brazil could consider granting powers to this body to help ensure effective implementation of the RIA tool. OECD country experience shows that these attributions could include requiring ministerial approval of RIAs, blocking the publication of regulations that do not prepare a RIA or receive authorisation for exemption, or a “naming and shaming” mechanism in which ministries and agencies that do not prepare RIAs are identified publicly. In this situation, agencies subject to Regulatory Agencies Act No. 13.848/2019 should be exempted in order to avoid undermining their independence.

In the short term, Brazil could consider further strengthening SEAE’s role as an oversight body for RIA and stakeholder engagement. By providing the Secretariat with the possibility of requesting improvements and modifications to the RIAs submitted by the ministries and agencies, impact assessments becomes a tool for evidence-based decision-making rather than an administrative requirement. It is important to incorporate in SEAE’s mandate the legal authority to scrutinise the regulatory analyses and give the entity the possibility of returning RIAs that do not include an adequate analysis. Adequate gatekeeping functions are key to building credibility in RIA. Brazil is at the early stages of its RIA journey, meaning that it has to place particular attention to the development of the foundations that will encourage the adoption and sustainability of the tool.

Brazil should foster the engagement of stakeholders in the regulatory process by embedding the requirements for public consultation in the RIA process. Brazil should give consideration to making consultation of draft regulation mandatory as part of the RIA process, such as in the case of regulatory agencies. Bringing stakeholders closer to the rule-making process leads to better quality regulations, achieves wider acceptance of the norms and increases trust in the administration.

As part of the measures to strengthen transparency in rule making through public consultation, Brazil could consider adopting the following practices:

• Centralise public consultation and publication of RIAs on a single website, for which the portal Participa + Brazil is the leading option.

• Promote the use of citizen-friendly language throughout the contents of the RIA. Consider providing training on the matter as part of the capacity building activities around better regulation. The engagement of knowledge brokers could also be considered.

• Ensure that stakeholders have all the relevant information to engage meaningfully in the consultation process. Make easily available the RIA, the policy proposal, studies, and other useful documents that can help inform the feedback from the stakeholders.

• Encourage the participation of stakeholders in the consultation process.

• Ensure that the oversight body is given the task of supervising or made responsible for undertaking these activities.

Brazil would benefit from securing greater buy-in from ministries and regulatory entities by increasing communication and engagement practices within the administration. Brazil could build on the experience by the regulatory agencies and other institutions with more advanced expertise on RIA, including its own Ministry of Economy, to advocate a change of culture within line ministries. This change in culture should be considered as a necessary condition for RIA to develop and improve over time. As such, the roadmap described above should include explicit actions to ensure that all the relevant parties adopt the mentality and have the adequate skills to use evidence to inform public policies. Moreover, ENAP and public policy schools can play a key role in promoting a change in the culture of public officials by utilising the RIA study and training activities already in place.

Through the creation of a community of practitioners, public officials could learn from their peers and realise the benefits that the RIA discipline brings to the sponsoring office. Another option is a system for exchanging officials, in which employees to work directly with another regulator or line ministry for a specific period to learn the RIA system from within. The latter could take place with Brazilian agencies as well as foreign entities, through the development of exchange programmes and partnerships.

Enhance the use of proportionality criteria and threshold tests for RIA starting with a high threshold for a small number of RIAs.

Continue efforts to build a robust data collection to provide information for the regulatory assessments. The Executive Secretariat of the Ministry of Economy can lead co-ordination and collaboration among SEAE, ENAP, and the Digital Government Secretariat to assist in the production, collection and access to data for RIA. Brazil would benefit from building or consolidating data catalogues within ministries and expanding the exchange of information across institutions.

Assessment

The Federal government of Brazil has several inter-institutional strategies to simplify regulations and reduce the administrative burdens created by public agencies. The strategies are crucial to make the regulatory framework user-friendly. However, they are not part of a national and integrated policy on administrative simplification. While these initiatives are relevant, they are individual efforts with uneven levels of implementation and with differing integration of administrative simplification tools. Expected outcomes from these strategies are ambitious and their implementation is still in progress. These strategies are:

• The Path to the Top 50 Most Competitive Countries’ strategy (Top 50). This strategy was designed to improve specific formalities and administrative processes that affect the business environment and the attraction of foreign investments.

• The Digitisation of Public Services programme (DSP); which aims at digitising all public services in Brazil at federal level.

• The National Network for the Simplification of the Registry and Formalisation of Businesses (Rede Nacional para a Simplificação do Registro e da Legalização de Empresas e Negócios, Redesim). Redesim’s objective is to reduce and simplify formalities to open businesses, as well as to decrease to the minimum the time and cost to register and formalise firms.

• Publication of Presidential Decree No. 10.139 in November 2019. It stated the obligation to review and consolidate normative acts lower than a decree in the federal administration.

Brazil has published several instruments and guidelines that are under the scope administrative simplification activities; however, they are not part of a well-defined, integrated and co-ordinated policy on administrative simplification, covering action lines, use of tools on administrative simplification (and regulatory policy), actors (oversight bodies and institutions with responsibilities on administrative simplification) and their roles.

The governance of the administrative simplification policy is another element with opportunity areas in the midterm. The Ministry of Economy through SEAE and the Special Secretariat for De-bureaucratisation, Management and Digital Government (SEDG) have the responsibility to manage and oversee several projects on administrative simplification. Currently, however, these efforts are not co-ordinated and lack a federal-wide focus. Effective co-ordination requires an oversight body with general and specific objectives, as well as defined goals. Such a body would help to undertake challenging strategies such as Redesim, where different levels of governments are involved.

Brazil uses several administrative simplification tools through projects that aim at reducing administrative burdens. However, there is no evidence of an integrated administrative simplification policy following a whole-of-government approach. For instance, there is no evidence of the systematic use of simplification measures before digitisation efforts in the DSP strategy. In Redesim, the focus is only on formalities for starting up businesses, thus other processes for business and individuals are relegated.

Furthermore, public entities have different levels of implementation of administrative simplification tools. In particular, regulatory agencies are among the most advanced institutions in the adoption of such practices with significant efforts. An illustrative example in the adoption of administrative simplification practices with a long-term approach can be observed in ANVISA, the National Health Surveillance Agency. In 2018, ANVISA launched the Guia para a mensuração da carga administrativa da regulamentação em Vigilância Sanitária. This document constitutes a guideline to measure administrative burdens from regulation. Some pilot programmes to tackle administrative burdens followed the introduction of the guidelines, which led to relevant savings for citizens.

At national level, in 2020, the Ministry of Economy published the Guia de Desregulamentação: Cutting the red tape. This document is a relevant example to promote the importance of a simplification strategy in Brazil. However, it requires a policy declaration or a high-level document indicating specific plans and goals for the government to achieve good results.

Decree No. 10.411/2020 dictates that public entities of the federal government conduct an evaluation of regulatory outcomes (ARR) to assess the original objectives of regulations and other effects observed. The Decree provides general criteria to select the potential regulations that will be subject to evaluation. These criteria include regulations with significant effects on the economy, the existence of issues derived from the implementation of the regulation, significant effects on specific groups, analysis of relevant information for the institution, and regulation that reach the 5-year maturity mark.

The formal requirement to perform an ex post evaluation of regulations is relevant progress for the management of the regulatory policy cycle. The challenge is an effective implementation of the practice where a set of priority regulations are assessed to identify potential reforms. As the decree was published in 2020, the current administration will begin to implement it in 2022.

The establishment of the Council for the Monitoring and Evaluation of Public Policies (CMAP) is also a step forward in the ex post evaluation of public interventions. CMAP is a collegiate body comprised by the Ministry of Economy, Casa Civil of the Presidency and the Office of the Comptroller General (CGU). CMAP is in charge of selecting a list of public policies subject to evaluation, according to specific criteria. The scope of the CMAP includes public policies financed by public spending and subsidies. The work of the CMAP is important for ex post evaluation practices, as it constitutes a relevant experience for the assessment of broader public policy instruments (such as regulations). Brazil should make progress in both schemes, the work of the CMAP and the development of the ARR; however, the ARR has a broader scope and it is important to start the practice with quality standards.

According to Decree No. 10.411/2020, during the first year of each presidential mandate all public entities within the federal administration must select and publish at least one regulation that will incorporate the ARR agenda on their respective websites. Such a regulation must be in the general interest of the economic agents or users of the services provided by the entity. The regulation assessment must be published before the end of each mandate. For the current administration, the ARR agenda must be published by 14 October 2022 and the assessment must be carried out by 31 December 2022. It is not clear, though, what the intensification process will look like for ex post evaluations in the country.

The decree provides instructions to plan the ex post evaluation. The requirement is to plan for the review of at least one regulation per public entity.14 This is a positive development in the right direction. However, there is a risk that ministries and agencies may decide to assess regulations that are not necessarily the most relevant ones, such as the ones with the most significant effects, in favour of easy targets.

Recommendations

Building on the progress and results so far, Brazil would benefit by stepping up the efforts to simplify formalities and reduce administrative burdens, including, but not limited to business licences and permits. The strategy should be part of a whole-of-government articulated strategy on administrative simplification, which in turn, should be a fundamental element of the policy on better regulation, and linked to the use of other regulatory management tools.

The whole-of-government articulated strategy on administrative simplification should help in addressing the challenges identified by the OECD in the indicator of Product Market Regulation (PMR), specifically on the sub-indicators on complexity in regulatory procedures and administrative burdens on start-ups. These sub-indicators try to capture, among other things, the efforts by the Brazilian processes for simplifying and evaluating regulations that are not competition friendly, and the administrative burdens that new companies must face when starting their business. While Brazil has made some progress in these areas, such as increasing the availability of e-government services, the country’s 2018 scores in these sub-indicators are significantly higher than the OECD average, and higher than the Latin American average.15

A whole of government approach means that the strategy on administrative simplification should go beyond licences and permits tor business start-up and encompasses formalities and government procedures that affect citizens and all other stages of the business cycle of enterprises, such as formalities needed for operation, import and export, amongst others.

The oversight body with the task of supervising the better regulation policy should be in charge of managing and following up the whole-of-government articulated strategy on administrative simplification, assessing progress against well-defined targets and reporting to the public. If there is more than one oversight body appointed on better regulation, proper co-ordination mechanisms should be set up.

While each current or new policy initiative as part of the strategy on administrative simplification has specific goals and objectives, all these elements should contribute to high-level objectives on better regulation. In this sense, provisions should be set to ensure that each initiative contains clear criteria on better regulation that apply horizontally to all of them, such as simplification measures before the digitisation of government processes and services, among others. Similarly, clear links with other regulatory management tools should be established, for instance with RIA, in which potential new formalities could be identified and simplified during the RIA scrutiny, before the legal instrument comes into being.

Brazil could consider undertaking measurements and reduction of administrative burdens on groups with regard to key government processes and formalities as part of the whole-of-government articulated strategy on administrative simplification, which will help prioritise efforts and increase accountability when reporting results to the public and other government authorities.

The methodology employed more widely by many OECD countries to measure administrative burdens is the Standard Cost Model (SCM), or variations of it. The SCM allows for the monetisation of burdens created by formalities, government procedures, and information obligations that must be prepared by citizens and businesses and submitted to the government. The monetisation of burdens facilitates the definition of reduction targets, while enabling policymakers to focus on the most onerous groups of formalities. Moreover, once simplification has been achieved, the monetisation of burdens relieved the assessment of reduction targets, and facilitates communications with the public at large.

Another approach for identifying the most onerous regulations is to engage directly with the regulated parties. By setting up a process that allows citizens and businesses to suggest regulations, processes, and formalities that could be simplified or eliminated, the administration would have an initial indication into where to focus resources to reduce administrative burdens. As in the case of public consultations, it is important to provide feedback to stakeholders on how and why their suggestions were or were not taken into consideration.

Use could be made of current experience on burden measurement and reduction in the digitisation of formalities and by entities such as ANVISA to define and carry out the plan for the rest of the government, as part of the whole-of-government articulated strategy on administrative simplification.

Brazil should work towards establishing the governance arrangements to enable a successful implementation of Decrees No. 10.139/2019 and No. 10.411/2020, so the ex post regulatory assessment tool is used systematically, as part of the broader policy on better regulation. The report Reviewing the Stock of Regulation, OECD Best Practice Principles for Regulatory Policy (OECD, 2020) establishes that the governance of ex post reviews is key to their effectiveness and provides advice in areas within regulatory systems for the ex post review of regulation.

Assessment

The national government should ensure that there are mechanisms in place to ensure regulatory coherence to avoid gaps, overlaps or conflicts in both the contents of the regulatory instruments and the enforcement approaches throughout levels of government. Sub-national governments have a key role in delivering public policy objectives through regulations. They may have the legal capacity to issue and enforce regulation within their own domains, as in federal-type jurisdictions such as Brazil. Alternatively, they may be given the task to implement and enforce regulations issued by upper levels of government, through bye-laws, manuals or guidelines, combined with actions to ensure the enforcement and compliance of the regulations. For that, the government must ensure regulatory coherence.

Brazil has taken some steps to improve co-ordination and regulatory consistency across government levels; however, the country lacks a systematic approach to regulatory coherence. Anecdotic evidence shows that while developing new national regulations, states and municipalities are not formally consulted, generating problems in the implementation. Thus, in some cases, states and municipalities do not have the financial or human resources to implement regulations that are developed at the national level.

Brazil has implemented tools for reducing the administrative burdens on citizens and businesses. These efforts are mainly focused on enhancing the business environment with the involvement of sub-national governments and seek to promote regulatory coherence by ensuring that licences and permits are consistent across the different levels of government. One of these initiatives is Redesim, which focuses on simplifying the process for opening a low-risk business. Redesim is a network formed by states and municipalities all over the country.

Even though some states and municipalities in Brazil use better regulation tools such as RIA and apply administrative simplification to their formalities and services, these are not systemised practices within states and municipalities. Moreover, the federal administration has not yet taken action to actively promote the adoption of regulatory policy tools in the sub-national governments.

Each state and municipality may design and implement its own better regulation practices, based on its objectives. For example, Minas Gerais issued the State Programme of De-bureaucratisation under Decree No. 47.776/2019. The Programme seeks to reduce the administrative burdens for businesses by eliminating formalities, to make inspections more efficient by focusing on identifying and correcting malpractices, and to train economic agents to make the Federal Economic Freedom Act effective. Additionally, as a result of the alignment with the national government, it seeks to make the use of RIA for all state regulation mandatory. Even though this programme is a good initiative, it does not cover all the different stages of the regulatory governance cycle.

Finally, governance of the regulatory policy at sub-national level still lacks a clear policy statement and oversight body that fosters their development.

One way to foster the development of regulatory management capacity and performance at sub-national levels of government is the promotion of best practice across these government authorities and between sub-national and national levels. The sharing of lessons learned, successful cases, and the “dos and don’ts” in the design, implementation and evaluation of regulatory policy and its tools can effectively promote their adoption.

Sub-national governments could also champion policies and programmes on better regulation on behalf of the federation. It should include recruiting the participation of specific ministries or agencies at lower levels of government responsible for ensuring the national level message is shared throughout and to co-ordinate the communication exchanges. In these arrangements, each level of government needs to have clear communication mechanisms and consistent ways of sharing the messaging.

Some states and municipalities in Brazil have adopted better regulation tools, such as administrative simplification and impact assessment. Currently, however, there is no mechanism to share relevant practices and exchange lessons learnt among sub-national governments.16 The gap in implementing regulatory management tools and policies can lead to diverse state or municipal regulatory frameworks, ultimately affecting citizens and businesses.

The national government has not devoted resources to identifying and mapping good practices on better regulation among sub-national governments. As a result, the federal government is not aware of all the relevant practices that exist across the country and cannot focus on their promotion. The identification and promotion of relevant practices among states and municipalities are important because it helps to close the gap between the ones that have advanced in implementing better regulation tools and the ones that have not. It allows states and municipalities to jump ahead to avoid mistakes and ease the adoption of regulatory policy tools and policies.

Sub-national governments are part of the public administration machinery, and as such, they should be able to follow principles and apply the appropriate tools to ensure that the regulations they issue are of high quality. In addition, they should ensure that they are effective in enforcing and implementing the regulatory framework. To achieve this, the federal level should step in to help generate the necessary capacities in sub-national governments.

Some states and municipalities in Brazil have started to use better regulation tools, the most common ones being administrative simplification and RIA. However, their implementation is not always optimal, as their main drivers are either political mandates or individual efforts by individual ministries and agencies. Moreover, neither the federal nor the sub-national administrations consider the effectiveness of the efforts and practices implemented at the states and municipalities. This means that it is difficult for administrations to focus their resources on those actions that enhance the quality of regulations.

Additionally, the federal government has not yet focused on developing capacity-building activities for public servants at sub-national level.

Recommendations

In the high-level document that defines and supports the country’s better regulation policy, and its gradual implementation plan, Brazil could consider incorporating a section to seek regulatory coherence across the three levels of government, and promote the adoption of better regulation policy and its tools by lower levels of government. In this undertaking, the federal nature of Brazil, which establishes clear limits on the regulatory powers of each level of government and ensures each one’s autonomy, should be fully considered.

The initial objective should be to quickly start the promotion of better regulation policy in regional and local governments, in which the federal government could play a leadership role. The gradual approach, together with the provisions set by the federal nature of Brazil, necessarily calls for a model based on promotion and voluntary approaches at the beginning. Once progress is achieved, different governance arrangements could be considered to strengthen the implementation of better regulation at sub-national level, which may include reforms to the regulatory framework.

Existing simplification initiatives such as Top 50 and Redesim, already follow the model in which the involvement of sub-national government is voluntary. The sub-national section of Brazil’s better regulation policy could build on these experiences and offer an overall and articulated strategy that may cover:

• Provisions to seek regulatory consistency: this implies creating a mechanism to notify sub-national governments of key draft regulations and creating spaces for engagement for those interested. Given the size of the country, proportionality approaches and prioritisation criteria should be employed. By setting up co-ordination mechanisms that ensure that regulations do not overlap, Brazil can reduce administrative burdens and promote legal certainty.

• Mechanisms to exchange good practices and lessons learned between the federal government and sub-national governments and among different sub-national governments. This will provide the federal government with information and data from which guides, manuals, toolkits, templates, model laws or tools, and a compendium of good practices can be drawn up and shared widely. The voluntary nature of this necessary mechanism implies that sub-national governments have the final decision on adopting these instruments.

• Mechanisms whereby sub-national governments can voluntarily request the support of the federal government to implement, develop or assess their better regulation policy. Initially, the support could be based on “soft” approaches such as advice, supervision, reviews, and capacity building exercises. Contingent on progress and other policy considerations, the mechanism could evolve to encompass more sophisticated incentives to boost adoption, such as transfers of resources.