On July 12, 2022, Brazil's National Agency for Petroleum,
Natural Gas and Biofuels (ANP) published Resolution No. 881/2022,
which governs the non-discriminatory access to waterway terminals,
by interested third parties and the owner-shipper, for the movement
of oil, its derivatives and biofuels.
The free access to waterway terminals is a legal determination
outlined in Article 58 of Law 9,478/97 (Petroleum Law), to
guarantee isonomy in the use of facilities for the entry of liquid
products, imported or moved by cabotage on the Brazilian coast,
upon adequate remuneration and safekeeping the right of preference
for the owner of the facilities. The resolution establishes the
parameters and criteria for the definition of the remuneration by
the operator, but, if there is no agreement between the parties,
the ANP will determine the amount and form of payment of the
adequate remuneration.
According to the text, the following is not subject to the
resolution: (i) port facilities used exclusively for o?shore
support; (ii) ship-to-ship operations (STS operations) not moored,
i.e., transshipment or cargo transfer operations of oil, its
derivatives, natural gas and biofuels directly between vessels not
moored positioned side by side, located in Brazilian jurisdictional
waters; (iii) port facilities used for the movement and storage of
methanol that do not move or store petroleum, its derivatives,
natural gas derivatives or biofuels; and (iv) liquefied natural gas
terminals (LNG).
The access to the terminal includes the loading and offloading
systems, the port pipelines integrating the terminal, the product
storage systems and other complementary systems of the terminal,
provided that they are indispensable for the movement or storage of
products. Moreover, the operator shall allow access to the use of
the terminal to interested parties whenever there is spare or
available movement capacity. In addition, the operator shall
monitor the available capacity and spare capacity, transferring
them to other interested parties in order to maximize the use of
facilities.
The new regulation also provides that the operator may adopt the
necessary measures for the clearing of the terminal in case of the
non-withdrawal of products by the shipper within the term
established in the contract, having to notify the ANP the
situations in which it was not possible to clear the terminal. In
the case of non-compliance with the schedule (except in case of act
of God or force majeure, or for the cases in which the parties have
agreed the ship-or-pay contracting modality), the shipper with
confirmed movement by the operator is obliged to bear the revenues
lost by the operator.
Good regulatory practices only require intervention when there are
distortions in the market, such as the limitation of the use of the
structure by third parties, either by not granting access or
different and unjustified commercial conditions. In this case, when
the ANP becomes aware of a fact or contractual clause that may
constitute an indication of an infringement of the economic order,
it shall immediately communicate the fact to the entities of the
Brazilian Competition Defense System (SBDC) in order for them to
adopt the appropriate measures, within the scope of the pertinent
legislation.
The Resolution enters into force on October 1, 2022, except in
relation to the operator's obligation to submit the new service
contracts or amendments with a term longer than 5 years to the
ANP´s approval, which shall occur within 150 days counted as
of August 1, 2022.
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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.