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 offshore 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.