Brazil: Act No. 12,815/13 – New Port Regulatory Framework – Conversion Of Provisional Measure No. 595/12

Further to our Newsletter of December 2012, this is to bring to your attention that the Brazilian Government formally announced that Act No. 12,815/13 ("Act 12,815/13") has reached its last step of Executive analysis and has been released by President Dilma Roussef. Act 12,815/13 stems from the conversion of Provisional Measure No. 595/12 ("MP 595/12") into law and, as such, is now part of the statutory bodies of law that regulate port activities in Brazil.

Act 12,815/13 faced intense legislative analysis, under which its original text – as conceived by the task force formed by President Roussef to craft the new legal framework – received over 645 proposed amendments while being processed before both the House of Representatives and Senate. It was also subject to 13 straight vetoes from President Roussef.

The main changes introduced by Act 12,815/13 can be summarized as follows:

Organized Ports and Leased Terminals

Act 12,815/13 excludes the express possibility of the partial granting of the operation and management of Organized Ports (public ports ran by state-owned companies or private concession holders), and establishes the new criteria for public bids for new concessions and lease agreements of public terminals. The main features of the new rule are, in a nutshell, the highest capacity of the operation (having volumes of cargo as the key reference), the lowest tariff to the end consumer or the shortest handling time at the dock (an important tool to unlock the current logistic bottleneck around the Brazilian coast and waterways).

All the bidding procedures, invitations and tenders will now, by the delegation of powers from the Government, be assigned either to the state-owned companies that run the public ports or, in some cases, and subject to formal delegation agreements, to the states or to the municipalities where such public ports are located.

Act 12,815/13 has also introduced some ancillary new features to the Brazilian port system:

  • At the request of the concession holder, the Government may authorize the expansion of a leased area to any contiguous area, so long as (i) such area falls within the boundaries of the predefined area of the public port (public ports in Brazil have a "map" approved by Decree with the firm contours of its boundaries); and, (ii) if such expansion of the concession results in improvements to the efficiency of the port activities and increases capacity; and
  • The current 25-year concessions can apply for renewal for another term of 25 years as of now, regardless of how many years have elapsed since the commencement of the first period of the concession. Such extension is conditioned to the presentation, by the concession holder, of a new business plan for the additional term, with firm commitment from its shareholders to bring new investment to the concession. This new plan for the second round of 25 years will undergo Governmental analysis and will be subject to the Government scrutiny and discretion.

Private Terminals ("TUPs")

This is the most significant change in the statutes and regulation that govern port activities in Brazil. The new Act is unlocking the port segment and creating the figure of the private port operator in the country. Before the enactment of the new body of law, private terminals could only be operated in Brazil as part of the chain of a given industrial activity. To reap the benefit of unused port capacity, the former law and regulation allowed owners of private terminals to move cargo from third parties, so long as such volumes were clearly ancillary to the main cargo (i.e., the cargo produced by the owner of the private terminal or its corporate group).

This road block has been the center of the discussions in the sector in the last 10 years in Brazil, igniting a fierce debate on whether the port activity was an activity of public nature – and, therefore, subject to exclusive concession by the Government – or whether it was an activity of private nature, subject to mere regulation and limited control by the Government and its bodies.

Act 12,815/13 gives a new shape to the system, works to untie the bottleneck of Brazilian logistics and attracts new entrants to this market.

In short, the so-called TUPs carry the following features:

  • They can move cargo from any party at any volume regardless of ownership and industrial origin;
  • From now on, they can only be built outside the pre defined area of the public port;
  • Developers will apply before the National Waterway Transport Agency ("ANTAQ") to obtain an authorization to operate a TUP, indicating in their requests the key characteristics of the such ventures (i.e., location, nature of the cargo and volumes);
  • Upon receiving the application, ANTAQ will give publicity to it and will announce to the market the characteristics of such venture;
  • After the publicity is given, and upon the existence of similar projects in the same area to handle the same type of cargo, the Government will start a selection process to define, observing the policies of the Government for the segment and its logistics planning, the project that will receive authorization. To reach its final decision, the Government will use the same criteria put in place for public ports' concessions, such as capacity, lowest tariff, fastest handling time of cargo;
  • Once selection is made, the new entrant will then execute a standard agreement with the Government setting out the features of the operation and the duration of such authorization;
  • The agreement will have a term of 25 years, which may be extended for successive periods, providing the port activity and the necessary investments for the expansion and modernization of the port installations are maintained;
  • Unlike in the public ports and leased terminals regimes, property and investments made by the authorization holder will not be treated as reversible assets and, as such, will not become property of the Government at the end of the authorized operational period;
  • The TUP authorization holders may do the direct hiring of manpower without the need to go through the Manpower Management Body (the "OGMO", an entity controlled by the workers unions). The use of manpower brokered by the OGMO will be optional to TUPs; and
  • Current TUP authorization holders will have one year to adjust their former agreements signed with the Government to the new framework of Act 12,815/13. Once adjustment is done and a new agreement is executed and delivered, then the TPU authorization holder is released to move any cargo at such terminal, despite its property and industrial origin, and will be no longer bound to the restrictions and proportions of the old legal framework.

This outline describes the main changes that are laying a new foundation for the sector and opening the system to new investments and massive creation of logistics options around the Brazilian coast and waterways. These features and legal mechanics will be further detailed and regulated via Decree, resolutions and ordinances from the Governmental agencies and bodies. In addition to that, it is relevant mentioning that the vetoes presented by President Roussef are still pending another round of analysis before the Brazilian Congress and, as such, they can still be turned down by both houses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.