On May 16, 2018, the National Waterway Transport Agency (Agência Nacional de Transportes Aquaviários – “ANTAQ”) published Normative Resolution No. 20 (“Resolution 20”) determining new criteria and procedures for the authorization for construction and operation of private use terminals (“TUPs”), cargo transshipment stations, small public port facilities and installation of tourism port facilities, revoking Resolution No. 3,290/2014 (“Resolution 3,290”).
The intended purpose of Resolution 20 is to adapt ANTAQ's regulation to the innovations set forth in Decree No. 9,048/2017 ("Decree 9,048"), which determined several changes to TUP regulations compared to Decree No. 8,033/2013 ("Decree 8,033"), such as: (i) amendment to the deadline to initiate operations of the port facility (5 years, which may be extended); (ii) documents required for requesting the authorization of the port facility, such as the possibility to initially provide only the certificate issued by the Federal Properties Management Office (Secretaria de Patrimônio da União) attesting that the area is available for future use by the requesting party, for example; (iii) requirements of performance guarantees by the authorized person only in the case of a public bid process; and (iv) establishing new possibilities for exemption from entering into a new adhesion agreement or the issuance of a new public notice, such as in the event of transfer ofof the authorization or expansion of the area of the port facility when there is locational feasibility, without the 25% limitation as previously determined, among others.
As a brief summary, Resolution 20 addresses, among other aspects: (i) the requirement for authorization for the construction and operation of TUPs and the applicable documentation; (ii) the procedures of announcements and public calls; (iii) the procedures for a public bid process; (iv) the authorization by means of adhesion agreement, the License of Clearance for Operation (Termo de Liberação de Operação); and (v) the transfer of the agreements and the transfer of corporate control of the authorized company (which in the latter case, from Decree 9,048, became an exclusive attribution of ANTAQ).
Resolution 20 also considers the possibility of adapting the current adhesion agreements to the terms of Decree 9,048 and ratifies the validity of the acts practiced in the process for obtainment of authorization, provided that such acts do not conflict with the new regulation.