26 March 2024

ANTAQ Held Public Hearing To Discuss Rules For Port Areas And Facilities

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On March 14, 2024, the National Agency of Waterway Transportation (Agência Nacional de Transportes Aquaviários, "ANTAQ") held Public Hearing No. 02/2024-ANTAQ.
Brazil Transport
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On March 14, 2024, the National Agency of Waterway Transportation (Agência Nacional de Transportes Aquaviários, "ANTAQ") held Public Hearing No. 02/2024-ANTAQ. The aim of the hearing was to obtain feedback and suggestions to improve the proposal to amend ANTAQ Normative Resolution No. 7/2016, which provides for the regulation for the exploitation of port areas and facilities under the management of the Port Administration, under the scope of Organized Ports.

The main regulatory innovations proposed are:

(i) Regulation of the public waterway exploitation institute

The port administration may allow the interested party to use the public waterway located in the polygonal area of the organized port for the handling and storage of cargo destined for, or coming from the water transport, or for activities unrelated to port operations. Bids are not required for such arrangement, but it must be advertised and, if there is more than one interested party, a simplified selection process must be observed in order to select the one that best meets the interests of the port.

(ii) Regulation of the exploitation of port areas and facilities under the public use regime

The resolution is expected to include the option to exploit port areas and facilities under a public-use regime through contracts for continual use, with a term of up to 180 days—which can be extended—unless another party is interested, and it is not possible to serve them concurrently. In the Public Use Operation there is no exclusive use for the exploiter, and the port administration can reclaim the area and designate another for the exploiter.

(iii) Regulation of the simplified selection procedure
The simplified selection procedure is already provided for in Law No. 14.047/2020 as an alternative to bidding. The regulation provides greater agility and flexibility in contracting, with the aim of best utilizing the space in an organized port. To this end, the port administration will appoint a commission responsible for receiving, examining, and judging documents and procedures relating to the selection.

(iv) Regulation of the distinction between port leases and port concessions

Law No. 14,047/2020 also established a distinction for the exploitation of areas and facilities in the organized port, distinguishing between the conceded port and the nationalized port (federal or delegated). This change brings two new models of property exploitation in the organized port:

  • nationalized ports (not conceded): exploitation of areas and facilities in the organized port based on the resolution now under review; and
  • conceded ports: exploitation of areas and facilities of the organized port based on contracts governed by private law.

(v) Specific flexibility in tariff regulations for port administrations

Making tariff regulation more flexible gives greater commercial autonomy in relation to the business environment. This will occur through (a) tacit approval of the annual tariff readjustment based on the official index; and (b) flexibility in market segmentation rules.

ANTAQ believes that the new rules could give port administrations greater commercial and management autonomy.

As stated by ANTAQ, the virtual session was streamed, recorded and made available on its YouTube channel. In addition, written contributions may be submitted until April 4, 2024, exclusively through the electronic form available on ANTAQ's website.

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This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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