First-step analysis: port operations in Brazil

Port operations

What government approvals are required in your jurisdiction for a port operator to commence operations following construction? How long does it typically take to obtain approvals?

The environmental licensing process has a three-step licence structure: previous licence, installation license (to start building) and operational licence (to start operation). The authorisations issued by and the National Agency for Waterway Transportation (ANTAQ) and the Ministry of Infrastructure to operate private ports are also divided into a two-step licensing procedure: installation licence and operational licence.

The date of assumption of the public port facility reflects the date of execution of the term of provisional acceptance and permission for use of assets, which certifies the permission to use and access the inventoried assets in order to begin the execution of the contract and shall be signed between the parties after approval of the Basic Implementation Plan (PBI) by the granting authority. The deadlines are established within the bidding notice.

For private port facilities, ANTAQ Resolution 71/2022 sets forth that the Operation Release Term (TLO) is document that authorises the start of the operation of the authorised port facility (terminal). In this sense, the beginning of the port facility operation will be conditioned to the issuance, by the ANTAQ, from TLO, after completing the following steps:

• approval of a technical inspection to be carried out upon formal request from the authorised to ANTAQ;
• presentation of the operating licence issued by the competent environmental agency;
• presentation of the authorisation for operation issued by the National Agency of Petroleum, Natural Gas and Biofuels (ANP) for the movement of petroleum or its derivatives, natural gas or biofuels;
• presentation of the certification of the Fire Department with jurisdiction over the area, regarding the security of the facilities that make up the terminal;
• presentation of the terminal security plan filed by the Committees Public Security Services in Ports, Terminals and Waterways (CESPORTOS), when applicable;
• presentation of the operating licence, issued by the municipal government; and
• affixing of the identification plate of the port facility and indicating the means of users’ communication with ANTAQ, made according to the standards and colours established in ANTAQ's regulations.

Further, the continuity of the operation after the end of the expansion is subject to compliance with the procedure established for its obtainment. ANTAQ will inform the granting authority about the drawing up of the TLO.

Also, ANTAQ shall be responsible for dispatching the International Traffic Qualification from the port facility, when applicable, conditioned to the prior drawing up of the TLO and presentation of the security plan of the protocoled terminal by CESPORTOS.

Moreover, ports facilities shall be authorised by ANP if handling any substances under their competence. Other licences from the fire department, the port captaincy (in relation to signalling and lights), the Committee of Public Safety in Ports, the Secretary of Union Assets, the Environmental Authority and other authorities may be necessary.

It is very hard to estimate the timing for obtaining such approvals, as each project has its own specific requirements.

What services does a port operator and what services does the port authority typically provide in your jurisdiction? Do the port authorities typically charge the port operator for any services?

The main responsibilities of the port operator are provided for under article 2, paragraph 12 of Law No. 12,815/2013 (Ports Law), which defines the port operator as the pre-qualified legal person to exercise passenger handling activities or the movement and storage of goods to or by water transport within the organised port area.

Furthermore, the port authority is the administrator of the port, as defined by article 17, paragraph 1 of the Ports Law. This same article, as along with article 18, lists the main responsibilities of the port authority, including, among others:

• to comply with the applicable legislation;
• to pre-qualify operators;
• to supervise construction works and port operations;
• to promote the removal of vessels and hulls;
• to authorise the entry and exit, and docking and undocking of vessels;
• to report infractions; and
• to act before ANTAQ.

In each public port, there are fees payable to the port authority, usually related to the use of the public infrastructure (access channels, etc). Usually, those are charged by the port operator to the customer and then transferred to the port authority.

In the private ports, the port operator and the port authority are the same company or entity.

Does the government or relevant port authority typically give any commitments in relation to access to the hinterland? To what extent does it require the operator to finance development of access routes or interconnections?

In relation to terminals in public port areas, access to the hinterland is the government’s responsibility.

With regard to private ports, the operator shall perform construction, renovation, expansion and improvement activities for its regular operation, including necessary access and connection to public roads and railways (article 4, section V(b) of ANTAQ Resolution No. 71/2022).

How do port authorities in your jurisdiction oversee terminal operations and in what circumstances may a port authority require the operator to suspend them?

The port authority shall comply with the legal and contractual obligations related to their activities. Also, as provided by article 17, paragraph 10 of the Ports Law, as well as ANTAQ Resolution No. 75/2022, the port authority may suspend port operations that may harm the port infrastructure or its operation, subject to the application of sanctions.

In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?

This scenario is provided for by article 32 of Law No. 8,987/1995, which provides for the concession and permission regime for the provision of public services provided for in article 175 of the Federal Constitution, sets forth the circumstances in which the port authority may intervene in the concession to ensure the appropriate performance of service and due observance of the applicable rules. Such intervention shall be made through decree. In addition, the public authority may intervene on behalf of the public interest upon prior payment of compensation.

Further, article 7 of the Ports Law, allows ANTAQ to regulate the exceptional use by any interested party of port facilities leased or operated by a private concessionaire, under the condition of ensuring adequate compensation.

ANTAQ founded the Permanent Commission for Port Concessions and Leases (CPLA) through Resolution No. 94/2023. The CPLA is responsible for the proceedings for biddings relevant to the exploration of public areas and infrastructure exploration.

What remedies are available to the port authority or government against a port operator that fails to operate and maintain the port as agreed?

If the port operator fails to operate and maintain the port as agreed, the port authority may take over the port operations and terminate the agreement early, and may also apply the corresponding penalties. The penalties are set forth in article 47 of the Ports Law as follows:

• a warning;
• a fine;
• a prohibition of access to the port area;
• a suspension or cancellation of the concession, lease or agreement with the port operator; and
• a prohibition to contract with any public entity.

Also, ANTAQ Resolution No. 75 of 2 June 2022, as well as the contracts that support the operations, provides for the supervision of the provision of port services and establishes administrative infractions, in this same sense, which breaches may result in the application of the penalties referred above.

ANTAQ may also apply, separately or jointly, the sanctions established in Federal Law No. 10,233/2001, which include penalties to the individual officers of the port operator.

What assets must port operators transfer to the relevant port authority on termination of a concession? Must port authorities pay any compensation for transferred assets?

As determined by article 5, paragraph 2 of Law 12,815/2013 (Ports Law), at the end of the term of the lease contract, the assets linked to the concessions or lease shall be transferred to the Federal Union without any compensation. Port operators that operate in public parts of the port are allowed to own their equipment. However, such equipment shall be subject to use by third parties through payment of remuneration to the owner of the equipment, as per ANTAQ Resolution No. 50/2021, which establishes guidelines on the use of equipment for owned by a port operator by other port operators, in non-leased facilities for public use, in the port area organised (public ports).