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 licence (to start building) and operational licence (to start operation). The authorisations issued by ANTAQ and MI to operate private ports are also divided into a two-step licensing procedure: installation licence and operational licence.

Further, ports shall further be authorised by the 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 (when applicable), SPU, 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 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 Law No. 12,815/201 in article 2, XII, which defines the port operator as the pre-qualified legal person to exercise the passenger handling activities or movement and storage of goods to or by water transport within the organised port area.

Furthermore, the port authority is precisely the administrator of the port, as defined by article 17, paragraph 1 of Law No. 12,815/2013. This same article, as well as article 18, lists the main responsibilities of the port authority, such as 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, docking and undocking of vessels, to report infractions and to act before ANTAQ, among others.

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 must perform construction, renovation, expansion and improvement activities for its regular operation, including necessary access and connection to public roads and railways, as per article 4, section V(b) of ANTAQ Resolution No. 20/2018.

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 must oversee the agreements and compliance with them, any authorisations and the implementation of concessions. Also, as provided by article 17, X of Law No. 12,815/2013, the port authority may suspend port operations that may harm the port infrastructure or its operation.

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 sets the circumstances in which the authority may intervene in the concession to assure the appropriate performance of the service and the 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 Law on Ports 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.

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 Law No. 12,815/2013, article 47:

• warning;
• fine (as per ANTAQ Resolution No. 3,274, fines can reach 1 million reais);
• prohibition of access to the port area;
• suspension or cancellation of the concession, lease or agreement with the port operator; and
• prohibition to contract with any public entity.

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 No. 12,815/2013, at the end of the term of the contract, the assets linked to the concessions or leased must be transferred to the Federal Union, without any compensation. However, compensation will be due in relation to investments related to the reversible assets not yet amortised or depreciated which were made aiming at the continuity of the services provided, in accordance with article 36 of Law No. 8.987/1995.