TCU minister warns of bureaucracy and advocates modernization of port sector rules

Since 2001 at the Tribunal de Contas da União, Benjamin Zymler took part in the Summit TCU, promoted by Grupo Tribuna in Brasília (Dimmy Falcão/Especial para A Tribuna)

The minister of the Tribunal de Contas da União (TCU), Benjamin Zymler, stated that the Brazilian port sector needs to innovate and review rules and procedures that no longer keep pace with the dynamics of logistics activities. The assessment was made during the Summit TCU, an event promoted by Grupo Tribuna last Tuesday at the headquarters of the Court of Accounts in Brasília.

When addressing the future of the national port framework, the minister highlighted that the TCU plays an important role in legal certainty and in the analysis of bidding documents and public policies, but acknowledged that the agency operates within a complex regulatory environment.

“I was able to observe the complexity of the Brazilian port sector. There are so many topics and issues that we here at the court are often placed in a very difficult position to resolve certain dilemmas that are raised.”

Zymler emphasized that the oversight exercised by the Court occurs mainly in the field of legality and administrative efficiency, which becomes more delicate when it involves regulatory decisions by agencies. He cited as an example discussions involving port tenders and decisions by the Agência Nacional de Transportes Aquaviários (Antaq), in which the court must balance respect for the regulatory sphere with the analysis of the legality of administrative acts.

According to the minister, in many cases the TCU opts for recommendations rather than direct determinations. “When you recommend, you merely induce, but do not compel”, he said, explaining that the Court seeks to respect the discretion of the regulatory agency and the granting authority.

Despite this, Zymler raised questions about the current regulatory model of the sector. In his view, there is excessive bureaucracy, lengthy and costly procedures that end up hindering investments and decisions. “I am truly concerned about the port sector. I believe we have too many processes at the TCU.”

As an alternative to reduce disputes and prevent conflicts from reaching the Court of Accounts, the minister advocated the creation of consensual dispute resolution mechanisms within the sector itself. One of the ideas presented is the creation of a Chamber of Self-Regulation and Conflict Resolution, which would allow port stakeholders to resolve disputes before resorting to oversight bodies or the Judiciary.

“The idea is to avoid submitting to the TCU matters that could and should be resolved through consensual mechanisms.”

Problems

Among the points criticized by the minister are the broad use of Technical, Economic, and Environmental Feasibility Studies (Evtea) and the mechanisms for economic and financial rebalancing of contracts.

“No one knows what will happen in 25 or 30 years. These studies are complex, require an unbelievable amount of work and, in fact, are a forecast of something that will not occur.”

In his assessment, the rigidity of the port leasing model also contributes to a scenario of regulatory asymmetry when compared to private use terminals (TUPs), which have simpler authorization processes. He cited figures indicating faster growth in investments in TUPs and, to a lesser extent, in port leases.

Zymler also criticized the model that provides for the reversion of assets to the State at the end of contracts, arguing that the rapid technological evolution of the sector renders much equipment obsolete in a short time. “Ultimately, the reversibility of assets in the field of port concessions does not make sense, because the superstructure becomes obsolete very quickly.”

The minister concluded with a message of caution and expectation for the future of the sector. “I hope that the National Congress will take up this project (to review the Port Law) and bring forward new ideas. The final outcome will be a reduction of this regulatory asymmetry and a recognition that the port leasing model needs to be modernized.”