by Giuseppe Giamundo Neto, Luiz Felipe Pinto Lima Graziano and Diogo Albaneze Gomes Ribeiro
Active participation by interested parties tends to result in rules that fit reality better, since they are not drafted at a distance from those affected by the regulation.
A proposal to regulate the minimum floor for road freight is under public consultation at ANTT. For context, it is worth recalling that the minimum freight price policy was introduced by the federal government through MP 832/18, in response to the demands of independent truckers, with the aim of ending the strike that severely affected the movement of goods in the country, causing shortages and incalculable losses to Brazil’s productive sector.
With the conversion of MP 832/18 into Law 13,703/18, it was established that the process of setting the minimum floors would be technical, widely publicized and would involve representatives of the various sectors concerned.
To begin this regulatory process, on 12.27.18 ANTT hired the Luiz de Queiroz College of Agriculture, Department of Economics, Administration and Sociology (“ESALQ-LOG”) to review the minimum freight floor values. To obtain as many variables as possible for the mathematical model for pricing the minimum, the institution held meetings with the three main sectors affected (shippers, carriers and independent truckers). During this stage prior to the current public consultation phase, it is estimated that around 400 representatives of these sectors were heard.
Despite ANTT’s notable and commendable effort at dialogue, it is impossible not to note that any price-fixing policy (other than one that is merely a reference) is in itself improper and harmful to the free market and the law of supply and demand, and may cause distortions and losses for the independent truckers themselves. Indeed, depending on how the freight floor is defined over time, it will only encourage companies to invest in their own fleets. Not for nothing, several entities, such as ABOL – the Brazilian Association of Logistics Operators, have been taking a firm stand against this price-fixing policy.
It is worth recalling that the constitutionality of the National Policy on Minimum Floors for Road Freight Transportation (“PNPM – TRC”) is being challenged at the STF through ADIs 5,956, 5,959 and 5,964. In these actions, Justice Luiz Fux ordered the suspension of all proceedings involving the unconstitutionality or suspension of the effectiveness of MP 832/18 or ANTT Resolution 5,820/18.
Therefore, until the STF rules definitively on the matter, this price-fixing policy must be observed. In this context, it must be acknowledged that the update of the PNPM – TRC carried out by ESALQ-LOG corrects some errors and distortions in the regulation currently in force (Resolution 5,820/18). A good example is the return-freight rule which, fortunately, was removed from the draft resolution submitted to public hearing, as well as dedicated or captive fleets, which were excluded from the calculation of the minimum floor.
In addition, the parameters proposed by ESALQ-LOG for setting the minimum floor were designed using a model based on the cost structure of transportation services, considering two basic aspects: fixed cost and variable cost. Fixed costs are those that do not vary with the distance traveled and continue to exist even when the vehicle is idle. On this point, the current proposal improves on the existing rule by incorporating (i) costs related to the risk of accident and theft of the vehicle combination and (ii) the additional cost of hazardous cargo — making the new “table” somewhat more in line with the reality of the cargo transportation sector.
Variable costs are also now considered, understood as those that depend on the distance traveled in the transportation operation, that is, they are directly proportional to the distance and zero when the vehicle combination is not operating (costs of fuel, ARLA/AdBlue, tires, maintenance, lubricants, washing and grease).
In addition, the cargo and freight covered by the new minimum floor were broken down into eleven categories according to their specific characteristics (e.g. general cargo, hazardous general cargo, liquid bulk cargo, refrigerated cargo, containerized cargo, etc.), adapting, at least to some extent, to the reality of the particularities of transporting each of these types of cargo.
However, the proposed minimum floor also has inconsistencies which, it is hoped, will be corrected based on the analysis of the contributions submitted during this public consultation phase. For example, there is a notable absence of a definition or rule on payment for owner-operators when the trailer belongs to the carrier. Another aspect that stands out concerns the system for calculating the minimum freight floors itself. The floor value, as explained above, takes into account the fixed and variable cost coefficients of the reference vehicle combinations defined for each type of cargo. It also considers the number of axles. However, there are vehicles with the same number of axles but completely different load capacities, a reality not reflected in the minimum floor calculation formula.
Another issue is that, by considering raised axles in the calculation of the minimum freight, the draft resolution contradicts the logic adopted in Law 13,711/18, which established the exclusion of raised axles for the purpose of charging tolls.
It is also worth noting that the draft resolution failed to address the problem of complex logistics contracts, in which the road freight transportation portion is not usually separated. After all, for the buyer of logistics solutions, road freight transportation is only one stage of a much broader contracted solution, which may involve multimodal transportation (not always with the modes involved defined in advance), warehousing and inventory management, among others.
Finally, without seeking to exhaust the inconsistencies in the resolution, a questionable exception to the application of the PNPM – TRC was created for contracts entered into with a waiver or non-requirement of tender under Law 8,666/93. This exception, in addition to not being provided for in Law 13,703/18 and contradicting the PNPM – TRC’s logic of setting “adequate remuneration for the service provided”, creates a worrying incentive for public companies to operate in sectors currently served by the private sector under competition.
Indeed, the discussion on this point gains greater importance given the prospect of ECT – the Brazilian Postal and Telegraph Company operating with a waiver of tender in activities not covered by the postal monopoly (as is the case with logistics services), depending on the outcome of the discussion under way at the STF in writ of mandamus 34,939/DF. Excluding the application of the PNPM – TRC from ECT’s contracts with the government would certainly deserve careful reflection, with a proper analysis of its regulatory impact.
It is therefore essential that representative entities, together with companies in the transportation sector, reassess the calculation methodology proposed by ANTT. Active participation by interested parties tends to result in rules that fit reality better, since they are not drafted at a distance from those affected by the regulation. Likewise, criticism and contributions from interested parties are not enough; they must be effectively examined and considered by the regulator. This is what art. 29 of the LINDB requires, and what is expected of ANTT for better-quality regulatory policy.
Article originally published on the Migalhas website (in Portuguese), on 05.24.2019.
