Logistics and Industrial Customs Centers
("CLIA"): Reform of the legal regime governing dry ports
(customs locations in secondary zones)
On April 4, 2013, Provisional Measure No. 612 ("PM 612")
entered into effect, thus changing, among other provisions, the
legal regime applicable to customs locations within Brazil's
secondary zones, and in particular, the legal regime governing
logistics and industrial customs centers ("CLIAs").
Customs or dutiable locations are sites under customs control
where imported goods or goods dispatched for exportation (and
associated services) transit or are stored for purposes of customs
clearance.
For the purpose of customs control, the national territory is
divided into a primary zone (consisting of ports, airports, and
border customs points) and a secondary zone (the rest of the
country). The terms ?CLIA? and ?dry port? thus refer to customs
sites that are not located within ports, airports, or inland border
transit points.
PM 612 revokes the grant of concessions/permissions to operate dry
ports in favor of a new model based upon licenses.
According to Art. 5 of PM 612, the right to operation a CLIA will
be granted by license to entities incorporated in Brazil that are
engaged in the service of general storage, by demonstrating their
compliance with tax laws and economic, technical, and operational
requirements for customs established by the Secretariat of Brazil?s
Federal Revenue Service ("Federal Revenue"), as well as
the requirements of the measure itself (e.g., being the owner,
holder, or user of the land where the CLIA will operate; having net
worth equal or superior to R$2 million; submitting an operational
plan consistent with the preliminary project for the CLIA that was
previously approved by the competent authorities; and the CLIA
being located in a municipality or metropolitan region where a unit
of the Federal Revenue is located).
Before the promulgation of PM 612, the operation of sites to
movement and storage of goods in secondary zones for importation
and exportation was authorized pursuant to concessions and
permissions granted by the Federal Revenue pursuant to provision VI
of Art 1, of Law No. 9.074 of July 7, 1995, which was revoked by
the abovementioned PM 612. This means that parties who operated dry
ports under the old regime were required to observe rules
applicable to any party providing public services. In this regard,
the operation of dry ports by private entities or individuals under
the concession or permission regime had to, for example, be
preceded by a public bid.
The old regime governing the operation of CLIAs was an obstacle to
the wider movement and storage of goods and services, as it did not
allow rapid modification of the operational capacity of locations
placed in secondary zones, and prevented the relocation of CLIAs in
order to meet changing demand. Additionally, because the services
provided in dry ports are in the nature of public services, it was
difficult to attract interested parties to bid, and there was legal
uncertainty regarding extensions of the terms of contracts entered
into with Federal Revenue.
Pursuant to the new license regime, licensed operators have
greater freedom to extend or exit contracts to operate CLIAs,
allowing greater economic efficiency in the customs control
system.
As noted, the old model was based upon revoked provision VI of
Art. 1, of Law No. 9.074. Although the revoked provision deemed the
operation of dry ports to be public services, the Constitution of
the Federal Republic of Brazil does not expressly treat them as
such. Indeed, before Law No. 9.074, the operation of customs
stations and other customs terminals placed in secondary zones were
deemed economic activities in the strict sense, although it was
necessary to obtain an authorization granted by the Federal
Revenue.
To avoid conflict between the old and new regimes for operating
CLIAs, as well as to avoid harm to permitees operating dry ports
upon the basis of the revoked provision, PM 612 provides that
old-regime permitees may, upon request and where doing so will in
no way prejudice the federal government, transfer their operations
to the new regime governed by PM 612, with no interruption in
activities and with no penalty for contractual termination. In the
event such transfer occurs, the existing contract for operations
will be terminated via the same act that grants the license for
operation of the CLIA. We note, however, that the termination of
such contracts does not dismiss the contracting party from
outstanding contractual obligations or any penalties due for
infractions occurring during the term of such contracts.
With the purpose of resolving disputes involving the term of
existing concessions and permissions based on emergency contracts,
injunctions, and on Provisional Measure No. 320 of August 24, 2006
(?PM 320?), the new regime will also apply to:
- A customs venue that was previously operated pursuant to a permit or concession on the date that PM 612 entered into effect, due to judicial measure or supported by emergency contract; and
- A customs venue that was operating, on the date PM 612 entered into effect (i.e., April 4, 2013), as a CLIA pursuant to PM 320 (transferal to the PM 612 regime will occur pursuant to Art. 16 of PM 612 or by court order).
We also note that Art. 16 of PM 612 provides that a
concessionaire operating in a facility housed on federal government
land may, upon 365 days prior notice, terminate its contract, such
concessionaire retaining the right to operate the CLIA via a
license issued by Federal Revenue until the end of the original
term of the concession (in exchange, of course, for payment of rent
to use federal government land). However, partial termination of
such contracts is not permissible.
PM 612 prohibits the grant of licenses to operate CLIAs in
municipalities covered in bid notices and concession contracts
arising under revoked provision VI of Art. 1, of Law No. 9.074
during the term of the contract. However, as previously mentioned,
such prohibition does not apply to prevent transfers from other
locations that operate in geographic areas covered by bid notices
arising under the former regime to the new regime.
It is important to mention that the limitation described above
does not apply to geographic areas where the party seeking a
license to operate a CLIA demonstrates, through a ?Technical and
Economic Feasibility Study?, that: (i) there is demand for services
that is not being met by existing resources under the old regime;
(ii) the growing demand for services indicates that customs
infrastructure must be strengthened quickly; or (iii) the economic
growth of the region indicates a potential demand for services that
cannot be met by current customs areas or infrastructure.
Finally, we must emphasize that Federal Revenue has jurisdiction
over customs matters and thus establishes the procedures to be
complied with by operators of customs areas (as provided by Federal
Revenue Ordinance No. 3.518/2011). Although PM 612 provides that
Federal Revenue may allow the operation of the CLIAs through
licenses, we note that the Federal Revenue?s own ruling does not
yet foresee the possibility of allowing operations pursuant to
licenses.
Thus, we recommend that potential concessionaires pay close
attention to any Federal Revenue procedures that may be announced,
it being possible that, in order to give effectiveness to the new
provisional measure, Federal Revenue will issue implementing
regulations in the future.
The promulgation of PM 612 demonstrates the government?s desire to
encourage the development of infrastructure in Brazil and also to
complement the reform of the ports legal regime recently witnessed
by the issuance of Provisional Measure No. 595/2012. Together,
these new measures will strengthen infrastructure for the movement
and storage of goods within Brazil.
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.