Getting to understand the Private Use Terminal authorization process
The Port Regulatory Framework of the port sector (Law No. 12,815, 2013 and Decree 8,033, 2013) has set new terms to explore the Private Use Terminals (TUP), Transshipment Cargo point (ETC), Tourist Facilities Port (IPT) and Small-State Public-Port Facility (IP4).
Among the changes the law has brought is the possibility to handle third party cargos in Private Use Terminals. Before the Port Regulatory Framework, the TUPs could only handle their own cargo.
According to the new legislation, anyone who is interested in obtaining the authorization to install a port outside the statutory port area can submit a request to the National Agency for Waterway Transportation (ANTAQ) at any time.
This proposal must include a memorial describing the facilities and the juridical instrument that assures its use and utilization, among other documents that might be required by ANTAQ.
After receiving the request, ANTAQ should publish on its website, within five days, the entire document and its attachments and afterwards, promote the Public Announcement (within 10 days) and identify within 30 days the existence of other interests in port facilities in the same region with similar characteristics.
The opening of the public announcement meets the legal requirement (1st paragraph of the 9th clause of Law No. 12,815) that determines the existence of other interested parties – besides those who already have authorization.
Enterprises or entities constituted under Brazilian laws, with headquarters within Brazilian borders, whether on its own, or as a part of a consortium, are allowed to take part in the process and must inform their interest within the timeframe referred to above. The new interested party shall have 90 days to present or rectify to ANTAQ the complementary information as established on Decree No. 8,033 (clause 33).
After ANTAQ’s receipt of the requirements, the Presidency Secretariat for Ports SEP/PR, the concessionary authority, will analyze the location feasibility of this enterprise (they will check if it is possible to have two or more port facilities in the same region that will not cause an operational obstruction to any of them).
It will also analyze its adequacy to policies of the port sector, as established on clause 15 of Law No. 12,815. After analyzing the requirements and final conclusion, the SEP will celebrate the contract of adhesion.
The transfer of the authorization ownership, as long as it preserves the conditions established on the original contract, will not depend on a new contract of adhesion, as long as it is approved by SEP as established on Act 249, published on 05.12.2013.
It is also exempt from a new contract of adhesion, the increasing of the handling capacity or the port installation storage, as long as there is no expansion of the original area, as established in clause 35 of the Decree 8,033, 2013 and the act mentioned above.
SEP may also exempt the issuing of a new authorization in case of new cargo handling alteration or enlargement of the port facility area– outside the statutory port area – as long as it does not exceed 25% of its original area, and there is vocational feasibility, as set on Act 110/2013 of SEP/PR.
Nowadays there are 128 TUPs and 6 ETCs authorized to operate in the country. Until June 5, 2014, the current authorizations will have to be adjusted by ANTAQ and a new contract will be made between the interested party and SEP/PR. The new private terminals should be located out of statutory port area.
Scenario – The private terminals handled 64% of the cargo volume in 2013. The port system (which includes statutory ports and TUPs) handled 931 million tons (solid bulk, liquid bulk, general cargo and containerized cargo) in 2013, as compared to 886 million tons in 2011.
The operation of the new TUPs, when duly authorized by SEP/PR, will promote an estimated handling increase of 18% of their handled volume.
Considering this scenario, the increase of cargo handling is distributed as follows: general cargo 57.1 million tons per year; solid bulk 109.4 million tons per year; liquid bulk 25.3 cubic meters per year; passengers 0.5 million per year.
It is important to point out that the interested parties who are outside the authorization process may request it at any time as established on the New Port Regulatory Framework.
As established on clause 8th of Law No. 12,815, the port exploitation authorizations will last for 25 years and may be extended as many times as needed, as long as the port activity is constant and the delegate makes the needed investments to expand and modernize the port facilities.
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