Written by: Fabiola Olivia Perales Fernández | @FabiolaOPerales
The achievements of 2018
2018 was one of greatest years of achievements and enhancements for the regulatory policy in Latin America. Just to mention some of the most relevant events, we can point out the following: Argentina requested to the Organization for Economic Cooperation and Development (OECD) the first Study of Regulatory Policy for that country (to be published soon) opening a serious possibility of implementing the regulatory improvement policy; in Chile, in August 2018 President Piñera sent to Congress the Project of “Miscellaneous Law of Productivity and Entrepreneurship” that contemplates some regulatory improvement initiatives such as: the formalization of the Reports on Productivity and Regulatory Coherence and the simplification of the regulatory burdens; in Colombia, on January 1, 2108, the mandatory use of regulatory impact analysis (RIA) came into force and in June was created the Single System of Public Consultation (SUCOP) which aims to centralize the processes of public consultation of regulatory projects; Costa Rica started with the right foot in 2018, since at the end of 2017 the Regulatory Policy Committee of the OECD issued a favourable opinion to the policy that promotes the efficiency and quality of regulations in that country. Between July and August 2018, Costa Rica undertook a wide public consultation to identify the most cumbersome and costly formalities for citizens and in November the Ministry of Economy, Industry and Commerce (MEIC) signed agreements with municipalities in order to improve the country’s competitiveness, reduce formalities and expedite the opening of companies and construction permits, it should be noted that Costa Rica has been promoting and implementing the Regulatory Policy constantly since 2011; in May 2018, Ecuador issued the Executive Decree 372 declaring regulatory improvement and administrative and procedural simplification as state policy and establishing the rules, objectives and institutions in charge of the policy; El Salvador approved and issued its first Regulatory Improvement Law at the end of 2018, in addition to an intensive work carried out throughout the year on administrative simplification; the Dominican Republic issued a National Regulatory Improvement Plan in July and created the one-stop-shop for construction permits.
In Mexico, 2018, was particularly relevant because after eighteen years of having institutionalized the Regulatory Improvement Policy through Title Third A of the Federal Law of Administrative Procedure, a constitutional reform was achieved in which all the states of Mexico are obliged to implement actions of regulatory improvement and administrative simplification. Likewise, the constitutional reform ordered the creation of a General Law of Regulatory Improvement, which was issued in May of that year. From my perspective, the most significant reforms brought by this General Law were the following:
- The obligation for all Mexican states and municipalities to adopt and implement the regulatory policy. Until the issuance of the General Law, the adoption of the policy has been at the discretion of state governors and municipal mayors, generating an up-and-down in the processes of maturity of state systems of regulatory governance.
- The creation of the National Regulatory Improvement System, which will be directed by a National Regulatory Improvement Council, will allow better coordination of policy and its priorities at the national level.
- The creation of the National Observatory for Regulatory Improvement, which introduces other actors into policy management, such as citizens, academics, entrepreneurs and representatives of research centres.
- The institutionalization of the development of a National Strategy for Regulatory Improvement.
- And the definition of a minimum public consultation period of 20 working days for all regulatory blueprints submitted to the regulatory improvement process. Previously, there was no minimum public consultation period, only maximum response periods by the regulatory improvement authority to issue an opinion on the regulatory proposals, which in some cases eliminated the real possibility that individuals could analyse the regulatory proposals, send their comments and that these be considered in the analysis of the regulatory proposals.
Peru continued working on the implementation of Legislative Decree 1330 (issued on June 2017) on regulatory quality reviews in that country’s Ministries, and at the end of 2018, the same decree was amended in order to approve “additional administrative simplification measures” and “improve the institutional framework and instruments governing the regulatory quality improvement process”. Specifically, a numeral of obligations for the Executive Branch entities was incorporated (2.12), the following were defined as policy tools: a) administrative simplification; b) regulatory quality analysis of administrative procedures; c) ex ante and ex post regulatory impact analysis; d) consultation through its various modalities and e) the cost of regulation and procedures.
With all these enhancements in regulatory improvement Latin America, 2019 is seen as a year with great challenges in implementation and cooperation between the regulatory improvement authorities of the countries, the international organisations that promote the best regulatory practices and the interest groups in each country.
The challenges of 2019
Querbach and Ardnt (2017) have identified, since 2017, some areas for improving regulatory governance systems in the countries of the region in the document Regulatory Policy in Latin America: an analysis of the current situation. In particular, from this document I have identified the following still pending challenges:
Brazil could broaden the scope of regulatory policy since it currently concentrates on independent regulatory bodies (p. 39). In other words, the regulatory improvement policy can be applied homogeneously and harmoniously not only to the regulatory bodies, but also to the ministries and other public institutions of that country. The importance of creating a quality control of the regulatory impact analysis through a government agency outside the ministry that prepares the regulation has also been identified (p.40).
Chile could consolidate, promote and approve an explicit policy of regulatory improvement and support its implementation by creating a supervisory body to conduct it (p. 43). According to the OECD document “Regulatory Policy Outlook 2018”, Chile introduced via Presidential instruction 002 of 2016 the obligation to carry out the RIA in laws, emphasizing an analysis of impact on productivity. This obligation applies to all Ministries with issues of impact on economic affairs. In 2018, an attempt has been made to formalize the obligation via the Productivity and Entrepreneurship Bill, with respect to which, to date, it has not been able to identify whether the law has been issued, which configures it as a challenge for 2019 in Chile. Likewise, the National Productivity Commission of that country is carrying out a study for the definition and proposal of a regulatory impact analysis methodology in accordance with international good practices. Both the aforementioned draft law and this draft methodology could be the preamble for the systematic application of the policy of regulatory improvement in Chile.
Colombia could consolidate regulatory oversight functions currently fragmented into three institutions: the National Population Department (DNP) directs the implementation of Conpes 3816 and is responsible for disseminating good regulatory practices throughout government; the Administrative Department of Public Service (DAFP) has the role of reducing administrative burdens; and the Ministry of Commerce, Industry and Tourism (MINCETUR) coordinates and reviews proposed technical regulations (p. 46).
Costa Rica could broaden the scope of its regulatory policy program by applying Regulatory Impact Analysis to all regulatory proposals and not just those containing administrative procedures and formalities, i.e., adopt a comprehensive approach for the pursuit of regulatory quality (p. 49).
On the other hand, Ecuador, El Salvador, Mexico, Peru and the Dominican Republic are facing the challenge by 2019 of implementing what has been established in the new legal frameworks for regulatory improvement and developing the technical capacities of public servants in this area, as well as raising broad awareness of the policy and the use of its tools with the relevant stakeholders. During its implementation, it will be important for the bodies in charge of executing the new provisions to develop implementation plans or programmes and disseminate them on their website through a specific website where they provide timely a follow-up of the provisions to be implemented or already implemented, which would facilitate accountability, knowledge and understanding of the policy for citizens and for the various interest groups, and in the medium and long term would help to measure the objectives of the reforms and, where appropriate, identify the progress made.
In particular, it will be important in the case of Mexico to draw up and issue in 2019 the Regulation of the General Law of Regulatory Improvement and to make known how many states have complied with the obligation to harmonize and/or issue the new Regulatory Improvement Law applicable at the state and municipal levels in accordance with the precepts established in the General Law. Likewise, it will be important for the National Commission for Regulatory Improvement (CONAMER) to be able to make known when the new tools and institutions of the policy are scheduled to begin operating, such as, for example, the integration of the National Council for Regulatory Improvement and the National Observatory in accordance with the new Law, the start of operations of the citizen protest procedure, the dossier for formalities and services and the National Catalogue of regulations, formalities and services, among others. For this, it will be desirable that the new administration of the Federal Government, which began operations on December 1, 2018, can support the content of the General Law, for this reason it is recommended to review the new provisions and, if necessary, add to the Regulation or in a brief reform to the Law the adjustments it deems appropriate.
The 2019 relevant challenges for the international organizations promoting good regulatory practices, such as the OECD, the Inter-American Development Bank (IDB) and the Asia-Pacific Economic Cooperation Forum (APEC) will be, among others, to provide technical and/or financial support (according to their mission) for the development of capacities for regulatory improvement, to raise countries’ awareness of the benefits of technical and regulatory cooperation, and to document the countries’ progress in this area and the achievements made.
Another international forum that has great challenges in regulatory policy is the Commercial Treaty of the Pacific Alliance formed by Colombia, Chile, Mexico and Peru, countries that have agreed, via the treaty, the adoption and application of regulatory improvement tools in national regulatory frameworks. In this sense, and for the purposes of regulatory transparency and trade facilitation, it will be advisable for countries to open a virtual space in which they will inform the general public and businessmen about the advances and agreements made within the Regulatory Improvement Committee of the treaty and make available the monitoring of the implementation of regulatory improvement actions and the results achieved.
There is no doubt that 2019 will be a year of great implementation challenges for the policy makers of the regulatory improvement policy in Latin America. It is up to us, as citizens, to actively participate in public consultations and in the forums that regulators and regulatory improvement authorities convene, as well as to subscribe to the discussion and dissemination of the work carried out in this area.
Let’s go to work in order to achieve better, fairer, more efficient, effective and transparent governments.
Cite this publication as:
Perales-Fernández, F. (2019). The Regulatory Policy Agenda for Latin America in 2019. Blog Mejores Gobiernos. www.mejoresgobiernos.com.
 Decree 1595 of 2015. Article 22.214.171.124.5.4. Transitory paragraph.
 Querbach, T. and C. Arndt (2017), “Política regulatoria en América Latina: Un análisis de la situación actual”, OECD Publishing, Paris. http://dx.doi.org/10.1787/940ec5c6-es pp 39 –
 Cabe señalar que en Brasil los reguladores que aplican las buenas prácticas regulatorias son reguladores de servicios públicos, tales como: agua, electricidad, telecomunicaciones, y tienen carácter de independientes.
 OECD (2018), OECD Regulatory Policy Outlook 2018, OECD Publishing, Paris. https://doi.org/10.1787/9789264303072-en
 In the following link there are some recommendations and/or suggestions that in the moment of discussion in the congress I gave: https://mejoresgobiernos.com/wp-content/uploads/2018/03/Propuesta-de-Modificacio%CC%81n-del-Proyecto-de-Decreto-por-el-que-se-expide-la-Ley-General-de-Mejora-Regulatoria_marzo082018.pdf