Problems in appointments of regulatory agency directors

  • Problems in appointments of regulatory agency directors
    作者
    • Bruno Meyerhof Salama

      Associate Professor at FGV’s Sao Paulo Law School (FGV Direito SP) and Visiting Professor at UC Berkeley School of Law where he teaches Law & Economics. He holds a master's degree (LLM) and a doctorate (JSD) in law from the University of California at Berkeley, a master's degree in economics from FGV’s Sao Paulo School of Economics (FGV EESP) and a bachelor's degree in law from FADUSP. He is the author of several works published in Brazil and abroad. He is a member of the Bovespa Arbitration Chamber (CAM). He has been a member of the National Financial System Resources Council (CRSFN). He was a Visiting Professor at the Columbia University Law School and Visiting Researcher at the Faculty of Economics at the University of Hamburg in Germany. He has been selected twice to present at the Harvard and Stanford International Junior Faculty Forum. He joined Pinheiro Neto Advogados in São Paulo and Sullivan & Cromwell LLP in New York and is able to practice law in Brazil and the United States.

    • Juliana Palma

      Doctor and Master from the Faculty of Law of USP. Master of Laws (LL.M.) from Yale Law School and received a Lilian Goldman Perpetual Scholarship. Bachelor in Law from PUC-SP. She was visiting scholar at the Washington College of Law - American University. Professor at FGV’s Sao Paulo Law School (FGV Direito SP), in the area of regulation and research methodology, for the Undergraduate and Professional Master's programs. Coordinator of the Public Group of FGV Direito SP and collaborator of the School of Public Education, of which she was a student. Professor at the USJT Law School, teaching Administrative Law. She develops research in the area of Administrative Law, Regulation, and Law & Bureaucracy.

    • Arthur Barrionuevo

      Arthur Barrionuevo is a professor of economics at FGV’s Sao Paulo School of Business Administration (FGV EAESP) and Sao Paulo Law School (FGV Direito SP). He also works as a senior economic consultant in the areas of defense of competition and telecommunications regulation, having worked for FGV Consult and Tendências Consultoria Integrada. He was the Chairman of the Board of Directors of FINEP, a financial institution dedicated to the financing of Brazilian companies' R&D and served as Secretary of Technological Development of the Ministry of Science and Technology, where he was responsible for public policies to support business innovation. In the area of defense of competition, he served as advisor to the Administrative Council for Economic Defense (CADE), the Brazilian antitrust authority under President Fernando Henrique Cardoso. He acts as a consultant for companies and law firms in Brazil, in competition policies and regulatory issues. He also worked as a consultant for ANATEL, the Brazilian telecommunications agency, in the WACC infrastructure access and calculation regulations in the telecommunications sector. He has published several articles in Specialized Journals of Applied Economics and Law and in newspapers on issues such as competition and convergence of telecommunications services in Brazil and competition policies. He is a frequent speaker on competition and regulatory policies in Brazil.

摘要

The study titled “Problems in appointments of regulatory agency directors” identified five key issues related to appointments of the directors of Brazil’s regulatory agencies: (i) the fact that many directors come from within agencies themselves (25%); (ii) state-dominance, given that just 6% of directors come from the private sector; (iii) symbolism regarding Senate confirmation hearings, as they are largely rubber-stamping events; (iv) decision-making paralysis (only one regulatory agency has not experienced this problem); and (v) the prevalence of vacancies at the end of terms, which explains the fact that nomination is the longest phase in the process of appointing directors.

The aim was to describe the processes of nominating and appointing the directors of regulatory agencies, as well as their characteristics and their relationship to positions during terms in office.

The methodology used involved the compilation and analysis of official primary sources, including acts of appointment and dismissal, rules governing regulatory agencies, messages to the Senate, reports, and votes and statements by the Infrastructure Commission. The details of 18 regulatory agencies (six federal and 12 state) were analyzed and organized.

It was found that the majority of regulatory agency directors come from public-sector organizations, whether in the executive, legislature or judiciary, and 25% come from within regulators’ workforces themselves. Just 58% of agencies’ directors have a professional career linked to the function for which they were appointed, and 27% of appointees are members of parties. It was also found that one in five terms are not completed, due to changes of government, among other reasons.

On average, the federal government takes between two months and one year to appoint new directors, and this means that positions remain unfilled or occupied on an interim basis (the average time they are vacant for is 353 days). This is caused by delays in the president nominating names to the Senate. On average, this stage takes 188 days, while the Senate takes 36 days to appoint directors. (The Senate has never formally rejected a candidate nominated by the president.)

Of the federal agencies analyzed – in the areas of land transportation (ANTT), waterway transportation (ANTAQ), civil aviation (ANAC), electricity (ANEEL), oil, natural gas and biofuels (ANP) and telecommunications (ANATEL) – only the latter has never experienced decision-making paralysis, meaning a failure to achieve quorums for decisions due to vacant positions.