ANTAQ publishes new Resolution on EVTEA and the restoration of economic and financial balance of Port Leasing Agreements

On August 21, 2022, the Brazilian National Waterway Transport Agency (“ANTAQ”) published ANTAQ Resolution No. 85, of August 18, 2022, which establishes new rules on procedures for drafting and analysis of Technical, Economic and Environmental Feasibility Studies (“EVTEA”), and the restoration of economic and financial balance of leasing agreements for port areas and facilities in organized ports.

ANTAQ Resolution No. 85/2022 will come into force on September 01, 2022, and is the result of four years of investigative proceedings, initiated after recommendations of the Brazilian Federal Audit Court on the matter (Decision No.1,446/2018-Plenary). In addition, the Resolution is consistent with Federal Decree No. 10,139/2019, which provides for the review and consolidation of normative acts inferior to a decree.

ANTAQ Resolution No. 85/2022 consolidates, in a single normative act, the rules on the subject of EVTEA and restoration of economic and financial balance, which were previously segmented into different Resolutions. In addition, the Resolution repeals rules that were already obsolete, according to ANTAQ’s evaluation.

We highlight below the main aspects of the new Resolution:

• Leasing projects:
  • According to article 3 of ANTAQ Resolution No. 85/2022, the leasing of port areas and facilities must always be preceded by the drafting of the EVTEA, which must contain the name of the Responsible Technician and his signature.
  • The drafting of the EVTEA must always contemplate the forecast of three different macroeconomic landscapes: (i) conservative; (ii) pessimistic; and (iii) probable and optimistic. Such landscapes will serve as the basis for establishing the minimum contractual handling of cargo and/or passengers. Additionally, the drafting of such landscapes must comply with the Port’s Development and Zoning Plan (“PDZ”) and its guidelines.
  • In this regard, it was established that the lease term must be sufficient for the amortization of investments, and cannot exceed 35 years, as per article 19 of Decree No 8.033 of June 27, 2013.

• Leasing projects based on simplified studies:
  • For these cases, the contractual effectiveness will be of up to ten years. Any term extension for port leasing agreements procured on the basis of simplified studies must also be in compliance with the ten-year limit on the total effectiveness of the contract (article 6, caput and paragraph 1).
  • The contractual or operational unification of port terminals leased on the basis of simplified studies is prohibited (article 7, paragraph 1).
  • Investments in areas leased under this modality must be carried out at the lessee’s own risk, without any rights to compensation at the end of the agreement. However, in the event that there is public interest in acquiring assets resulting from such investments, the winner of the lease bidding must indemnify the former lessee for the unpaid portion of such assets (article 20).
  • As of the effectiveness of the new Resolution, contractual amendments to the size of port areas and facilities procured on the basis of simplified studies, for additions or suppressions, will be limited to 25% of the initial size of the contract (article 21).

• Restoration of Economic and Financial Balance:
  • The application for contractual review must be accompanied, mainly, by three documents: (i) an expert report on the events that caused the imbalance; (ii) documents relating to the preliminary authorization of contractual amendments that may be incorporated into the contract; and (iii) EVTEA on the economic-financial impact of the events that resulted in the imbalance.
  • The request for restoration of economic and financial balance due to a past event must be submitted within a maximum period of five years from the occurrence of such event, which characterizes the materialization of the risk or from the beginning of its occurrence, under penalty of preclusion of the right to restoration of balance.
  • During the procedures for restoration of economic and financial balance, ANTAQ will be responsible for: (i) issuing a conclusive technical opinion; (ii) deciding on the contractual request for restoration of balance; and (iii) suggesting eventual contractual adjustments to the Granting Authority.
  • The following attributions will be incumbent on the lessee: obtaining an act from the Granting Authority, previously authorizing the contractual restoration of balance and providing the minimum necessary documents for ANTAQ’s technical analysis of the request for restoration of balance (article 18).

Through the implementation of this Resolution, ANTAQ’s previous rules will be revoked, along with their respective provisions.

We highlight below the list of ANTAQ’s revoked rules upon the enactment of Resolution No. 85/2022: (i) Resolution No. 692/2006; (ii) Resolution No. 1,642/2010; (iii) Resolution No. 3,106/2013 (iv) Resolution No. 3,220/2014; (v) Resolution No. 5,464/2017 (vi) Resolution No. 7,315/2019; and (vii) Resolution No. 7,821/2020.

Demarest’s Public and Regulatory Law, and Infrastructure and Project Finance teams are monitoring new developments on the matter and are available to provide any further clarification that may be necessary.