You are here: Home > Sections > The New Ports Law

The new Port Regulatory Framework

by Janaina Ramalho published May 06, 2014 09:59 AM, last modified May 09, 2014 04:51 PM

The new Port Regulatory Framework was enacted on June 5, 2013. Law No. 12,815 sets the guidelines for the direct and indirect exploitation by the Federal Government of ports and port facilities, as well as the port operation activities. The law was regulated by Decree No. 8,033, dated June 28, 2013.

With the enactment of the new Port Regulatory Framework, the institutional arrangement of the Port Sector has changed. The Presidency Secretariat for Ports (SEP/PR) is responsible for policy decisions (it is worth mentioning that the policies now encompass lake and waterway ports). It is also responsible for concessioning rights and coordinating the planning activities of the port sector. The National Agency for Waterway Transportation (ANTAQ) is now attached to SEP/PR and it is in charge of regulation and fiscalization. It directly regulates and oversees the authorization, leasing and concessioning contracts, besides working as intervenient in delegation agreements. It is also responsible for executing the bidding procedures of concessions.

Beyond the new arrangement of the port sector, the main goal of the new Port Regulatory Framework is to eliminate the barriers of the Brazilian trade flow to encourage the cost reduction and increase the cargo handling efficiency. These changes will occur through more efficient ports.

The indirect exploitation of statutory ports and port facilities will be made through concessions (onerous concession of the statutory port) and leasing (onerous leasing of areas within the statutory port). Outside statutory port area, the private exploitation will be made through authorization (exploitation grant formalized by a contract of adhesion) to the private legal person that demonstrates ability to perform on its own risk.

The tenants and other parties authorized to exploit the private terminals must follow the following guidelines, as established in Law No. 12,815 (clause 3):

I - expansion, modernization and optimization of the infrastructure and superstructure contained within the statutory ports and their facilities;
II - guarantees regarding the accessibility and transparency of the tariffs and prices practiced in the sector, the quality of the service provided and the effectiveness of users’ rights;
III - promote the modernization and increased efficiency of port management within the statutory ports and their facilities, enhancing the quality of the port and its manpower and the efficiency of the services offered;
IV - enhanced security for shipping using the port; and
V –increase competition, with incentives for the participation of the private sector and assurances regarding full access to statutory ports, facilities and port activities.

The concessions and leasings will be carried out through a contract, preceded by a procurement process. The criteria for this process are higher cargo handling capacity, smallest tariff and shortest cargo handling time. They might be considered together or isolated, as established on Decree No. 8,033.

The authorization of port installation outside the statutory port area will be granted through public calls or public announcements organized by the National Agency for Waterway Transportation (ANTAQ). The duration of the exploitation period will be up to twenty-five years, with the ability to be renewed successively.

Before the new Port Regulatory Framework enactment, the port sector was regulated by Law No. 8,630, 1993. Throughout 2012 and 2013 first semester, the Federal Government, through SEP/PR, ANTAQ, Ministry of Planning, Ministry of Finance, Civil Cabinet and Planning and Logistic Company, joined efforts to coordinate the dialogues with the entire port community in order to elaborate the new Port Regulatory Framework.

Law nº 12.815
This Law refers to the development, through both direct and indirect actions, by the Federal Government, of ports and their facilities and also the activities carried out by port operators and establishes other measures.