Private Use Terminals (TUPs)
The new regulatory framework for the port sector (Law 12815 / 2013 and Decree 8033 / 2013) set new terms for the exploration of Private Use Terminals (TUP), Cargo Transhipment Stations (ETC), Tourist Facilities in Ports (IPT) and Small-scale Port Facilities (IP4).
The port authorization will last up to 25 years, renewable for successive periods as long as the port activity is maintained and the authorized party promotes the necessary investments for expansion and modernization of port facilities.
Who can participate?
Companies or entities organized under Brazilian laws, with headquarters and management in Brazil, alone or in consortium can participate.
Process for obtaining authorization
According to the new legislation, those interested in obtaining authorization for port facility outside the organized port area can submit a request to the National Agency for Waterway Transportation (ANTAQ) at any time.
Upon receiving a request, ANTAQ shall publish on its website, within 5 days, the full content of the request and its attachments and promote, within 10 days, the opening of the Public Announcement. A 30-day deadline will be set to identify other stakeholders interested in the port facility in the same region and with similar characteristics.
The new stakeholders will have 90 days to present and/or ratify to ANTAQ additional documents provided for in Article 33 of Decree 8033 / 2013.
The opening of the Public Announcement meets the legal requirement (paragraph 1 of Article 9 of Law 12815 / 2013) which determines the finding of other stakeholders - besides those that already have authorization.
Within 15 days from the date the documentation from ANTAQ is received, the Secretariat of Ports of the Presidency (SEP / PR), which is the Granting Authority will analyse the locational viability of the enterprise (possibility of physical implementation of two or more port facilities in the same geographic region that does not generate operational difficulties to any of them). It will also examine the adequacy to the guidelines on planning and on port sector policies, in accordance with Law 12815 / 2013 in Article 15.
After analysing the documents and deliberating, an adhesion contract between SEP / PR and the authorized company will be entered into, with the intervention of ANTAQ.
The authorization of transfer of ownership, as long as the conditions established in the original contract are kept, does not depend on a new adhesion contract, just the approval of the SEP / PR is needed, as indicated in SEP Ordinance 249, published on 05.12.2013.
Increased handling or storage capacity of the port facility is also exempted from a new adhesion contract, provided there is no expansion of the original area. As set out in Article 35 of Decree 8033 / 2013 and aforementioned ordinance.
SEP / PR may waive the issuance of a new authorization, in case of change in the cargo handled or expansion of the port area - located outside the organized port - provided they do not exceed 25% of the original area and that there is highest and best use, according to SEP Ordinance 110/2013.
TUPs prior to Law 12815 / 2013
Currently, there are 128 TUPs and six ETCs authorized to operate in the country before the adoption of Law 12815 / 2013. Existing authorizations should be adapted, by signing a new adhesion contract to be entered into by ANTAQ and the company, in compliance with powers delegated by SEP Ordinance 182/2014.