Ports - Private Use Terminals (TUPs)
Ports – Private Use Terminals (TUPs)
The regulatory framework of the ports sector (Federal Law # 12,815/2013 and Decree # 8,033/2013) defined new terms for exploitation of Private Use Terminals (TUPs), Cargo Outflow Station (ETC), Tourism Port Facility (IPT) and Small Port Facility (IP4).
The port authorisation will have a 25 years period, extendable in successive periods, as long as the port activity is kept and the entity responsible for the authorisation provides the necessary investments for expansion and modernisation of the ports.
Who May Participate?
Companies or entities constituted by Brazilian laws, with headquarters and management within Brazil, either isolated or in consortiums.
Process for Obtaining an Authorisation
According to the new legislation, those interested in obtaining authorisation for port facilities outside the organised port area can make a request to the National Water Transport Agency (ANTAQ) at anytime.
Proposals must contain the project specifications and legal instrument ensuring a right-to-use of the area (terrain), among additional documentation that may be required by ANTAQ.
Starting at the date of request reception, ANTAQ will publish on its website in up to 5 days the document with the entire request and its attachments, and promote, in up to 10 days, the opening of Public Announcement, with a period of 30 days to identify the existence of other companies interested to exploit ports in the same region and with similar characteristics.
New interested companies will have a 90 days period to deliver and/or ratify complementary documentation to ANTAQ, as established in Decree # 8,033/2013, Article 33.
The opening of Public Announcement shall answer the legal demand (Federal Law # 12,815/2013, Article 9, paragraph 1) that determines the verification of existence of other companies interested – in addition to those that already have authorisation.
Within 15 days, counted from the date the documentation is received by ANTAQ, the Secretariat of Ports (SEP), who is the granting power, will analyse the location feasibility (possibility of physical implementation of two or more ports in the same geographic region that does not affect either) of the arrangement. It will also analyse the adequacy regarding guidelines of the planning and of the ports sector politics, as provisioned in Federal Law # 12,815, Article 15.
After analysing the documents and their liberation, SEP will sign an adhesion contract.
Transferring the authorisation rights, since preserved the conditions established on the original contract, will not depend on a new adhesion contract, being enough the approval by the Secretariat of Ports, as seen in Portaria SEP 249, published on 05/12/2013.
The increase of flow capacity or storage of the port is also independent of new adhesion contract, since there is no expansion of the original area. This information is in Decree # 8,033/2013, Article 35 and in Portaria SEP 249.
SEP can also skip the emission of a new authorisation in cases of alteration in cargo flow type or expansion of the port area – located outside the organised port – that does not exceed 25% of the original area, since there is vocational feasibility, meeting Portaria SEP 110/2013.
TUPs Previous to Federal Law # 12,815/2013
Currently, there are 128 TUPs and 6 ETCs authorised in Brazil. Until June 05, 2014, the current authorisations must be adapted by ANTAQ and a new contract must be signed between the company and SEP.
More information (ONLY IN PORTUGUESE) on: http://www.antaq.gov.br/Portal/AnunciosPublicos.asp