ANP approves new guidelines for waterway terminal usage
On July 12th, 2022, the Brazilian Federal Government published Resolution No. 881/2022 from the National Agency of Petroleum, Natural Gas and Biofuels (ANP). The Resolution sets new guidelines for using waterway terminals for movement of oil, its derivatives, natural gas derivatives and biofuels, within or outside the organized ports areas.
The Resolution will come into force on October 1st, 2022, except for new service contracts lasting more than 5 (five) years, whose approval rules before ANP will only apply 150 days from August 1st, 2022. ANP’s Ordinance No. 251/2000 and No. 10/2022 have been revoked.
The Resolution’s main content is:
- operators of waterway terminals will have pre-emptive rights in the terminal usage;
- non-discriminatory access shall be granted to interested third parties;
- short deadlines shall be imposed for terminal operators to decide whether to grant or deny access to the movement and/or stocking services;
- ANP must share the following information transparently: (a) terminal’s movement capacity; (b) list of access denials issued in the previous year; and (c) owner’s pre-emption rights in each terminal.
- Unbundling: terminal operators must register their primary corporate business purpose as to “terminals logistics operations”. Such companies may optionally carry out activities related to terminal construction, pipeline transportation, fuel formation services and petrochemical plant operation.
Relatively to the owner’s pre-emptive right:
- ownerscan be entitled to the pre-emptive right in both public and private terminals for 10 (ten) years;
- the pre-emptive right will be reviewed every 5 (five) years; and
- The first request for preference right shall be filed before ANP in up to 90 (ninety) days, counting from the Resolution effective date. Only terminals already allowed to operate may be subject to this request.
Regarding contractual rules:
- contracts involving only one shipper using more than 50% of the terminal’s maximum capacity (“Majority Clients") will be allowed if the operator informs the contractual intention to ANP and subsequently performs a capacity public offering for other interested parties;
- contracts with Majority Clients shall be valid for 10 (ten) years, or until the next owner’s pre-emptive rights revision - whichever comes first; and
- existing contracts will not be terminated if they attended legal provisions that were applicable at the time of their execution.
Finally, we highlight that the Resolution expressly excludes liquefied natural gas terminals(LNG) and natural gas from its list of regulated products. Also, it will not apply to the following cases:
- port facilities exclusively designed for offshore support;
- unmoored ship-to-ship operations;
- port facilities designed for methanol movement and storage, which do not include petroleum, petroleum derivatives, natural gas derivatives or biofuels; and
- LNG terminals.
We provide the full text, in portuguese, here.
The Oil, Gas & Offshore team is available in case of doubts.