Public Services Alert – April 2021

ALERT – PUBLIC SERVICES

The Regulation that Develops the Institutional Framework that governs the Regulatory Quality Improvement Process and establishes the General Guidelines for the implementation of the Ex Ante Regulatory Impact Analysis was adopted

On April 3, 2021, Supreme Decree N° 063-2021-PCM was published, adopting the “Regulation that develops the Institutional Framework that governs the Regulatory Quality Improvement Process and establishes the General Guidelines for the implementation of the Ex Ante Regulatory Impact Analysis” (the “Regulation”).

The Regulation aims to establish the rules and responsibilities to guarantee the adequate functioning of (A) the institutional framework for the Improvement of Regulatory Quality; and (B) the implementation of the Ex Ante Regulatory Impact Analysis (“RIA”).

In this connection, the main aspects of the Regulation include the following:

(A) Regulatory Quality Improvement

1. Regulatory Cycle.- It is recognized that the regulatory cycle is a systemic, dynamic and comprehensive process that encompasses the design, drafting, adoption, implementation, enforcement, monitoring, evaluation and evidence-based improvement of regulation.
2. Principles for the Improvement of Regulatory Quality.- Without prejudice to the implementation of other principles contained in the Political Constitution of Peru, the Regulation provides that the Improvement of Regulatory Quality is fundamentally based on the following principles: (i) necessity; (ii) legality; (iii) effectiveness; (iv) proportionality; (v) consistency and coherence; (vi) transparency and participation; (vii) integrity and neutrality; (viii) simplicity; and (ix) accountability.
3. Improvement of Regulatory Quality as part of the Administrative System for Modernization of Public Management.- The Presidency of the Council of Ministers (“PCM“), through the Secretariat of Public Management, as the governing body of the Administrative System for Modernization of Public Management, develops and coordinates the process to contribute to the improvement of the quality of regulations in public entities, within the scope of their competencies.
4. Actors for the Improvement of Regulatory Quality.- In addition to the public entity responsible for improvement of the quality of the regulations issued within the scope of its competence, it must be noted that:

(i) For the active participation of the public sector, the PCM adopts the creation of different coordination and articulation mechanisms between the different levels of government for the Improvement of Regulatory Quality; and,

(ii) For the active participation of the private sector, academia, civil society and citizens in general, the PCM proposes the creation of a Consultative Commission with the purpose of strengthening the Improvement of Regulatory Quality in Peru; without prejudice to other mechanisms that may be established for that purpose.

5. Instruments for the Improvement of Regulatory Quality.- By way of example and not limitation, the Regulation recognizes the following instruments:

(i) Administrative simplification.

(ii) Regulatory Quality Analysis of administrative procedures.

(iii) Ex Ante RIA.

(iv) Ex Post RIA.

(v) Public consultation in its various forms.

(vi) The cost of regulations and procedures.

(vii) Revisions and repeals of the legal system.

(viii) The early agenda.

(ix) Tools for the generation, collection, processing and analysis of data and information for the generation of evidence.

(x) Others established by supreme decree.

(B) Ex Ante RIA

1. Concept.- It is the instrument for the Improvement of Regulatory Quality that aims to ensure that the proposed regulatory decision is the best option to help solve or reduce the risks of a public problem identified based on evidence; as well as to determine that its benefits are greater than its costs. All this while safeguarding integral, sustainable development and social welfare; and ensuring coherence with the legal system, implementation, compliance and monitoring of the chosen option.
2. Scope.- The following are excluded from the scope of the guidelines for the implementation of the Ex Ante RIA: (i) the Legislative Branch; (ii) the Judiciary; (iii) public enterprises under the scope of FONAFE or at the regional or local level; (iv) legal entities under the private regime who provide public services or exercise administrative functions, by virtue of concession, delegation or authorization of the State, in accordance with the relevant regulations; (v) special projects and programs; and (vi) other public entities that by their nature do not exercise regulatory functions of general scope.
3. Early Agenda.- This is the instrument through which the public entity schedules and publishes its public problems and possible regulatory interventions, in order to achieve programming and greater predictability, participation and transparency in the regulatory production process within the framework of the Ex Ante RIA.

Public entities prepare, adopt and publish the early agenda no later than the last working day of January of each year on their institutional portal and in a visible place of the public entity accessible to citizens, and disseminate it through electronic or mass media.

4. Public consultation.- This is the instrument through which the public entity schedules and organizes the public consultation in a timely manner in the design and development of the Ex Ante RIA, through its modalities of early public consultation and public consultation of the regulatory draft.
5. Mandatory nature of the instruments for the implementation of the Ex Ante RIA.- The PCM shall issue and publish the Manual for the implementation of the Ex Ante RIA, within a period not exceeding ninety (90) working days from the day following the publication of the Regulation, which shall be mandatory for public entities.

The Multisectoral Commission for Regulatory Quality shall inform the President of the Council of Ministers about the public entity that did not comply with the preparation of the Ex Ante RIA and disseminate it on the institutional portal of the PCM.

6. Monitoring and evaluation of regulations issued as a result of the Ex Ante RIA.- Public entities that issue a regulation as a result of the Ex Ante RIA are required to evaluate the result and impact of the regulation to determine whether the objectives set out have been met, as well as to identify proposals for improvements, amendments or repeal of the regulation.
7. Progressive implementation of the Ex Ante RIA.– The implementation of the Ex Ante RIA in the public entities of the Executive Branch is progressive, in accordance with the Progressive Implementation Plan to be published by the Secretariat of Public Management of the PCM within a period not exceeding thirty (30) working days from the day following the publication of the Regulation, which shall contain the mandatory schedule for its implementation.

The progressive implementation of the Ex Ante RIA in the other entities of the Public Administration is subject to the complementary guidelines, deadlines and conditions for the progressive implementation, to be issued by the Secretariat of Public Management of the PCM.

For further information, please contact Verónica Sattler (vsattler@estudiorodrigo.com), Alejandro Manayalle (amanayalle@estudiorodrigo.com) and/or Diana Briones (dbriones@estudiorodrigo.com).