Client Alert: Ports Brazilian Government issued Decree that will regulate the Ports Law Sources: blog.planalto.gov.br/governo-publica-decreto-que-regulamenta-a-lei-dos-portos/ The new Decree(Decreto Nº 8.033, de 27 de Junho de 2013) was announced by the government as being strategic in order to permit that the new concession agreements happen soon, transforming the port sector into a more efficient, modern and competitive business in Brazil. According to National Ports Secretary (“SEP”) Minister, Mr. Leônidas Cristino, the authorization requests for at least 40(forty) new seaports shall be divulged soon. The major points of interest at the Decree are: • The Government authority responsible for the Concession in the SEP (article 16) • The Bidding regimen will be the Contractor’s Differentiated Regimen (“RDC), with the phase inversion procedure, negotiation with the winner. • The Concession period will be of 25 years, extendable, and may include the port administration and the direct or indirect exploration of the port installations (article 19) • At the Concession and Lease Bids the bid criteria will be (solely or jointly): (i) The biggest cargo moving capability, (ii) the lesser fee and/or (iii)the smaller time for cargo moving. The Bid Tender may also establish the following criteria: (a) Greater amount of investment, (b) smaller investment of the conceding power and (c) best technical proposal. • The cargo to be moved at these ports will be bulk (solid, liquid and gas), general cargo or containers (article 29); • The Port Authority Council was defined as being composed by 16 members, being 08 public power representatives, 4 Private Companies representatives and 4 workers representatives (article 37); • The Port Administration Council (“CONSAD”) must be present at each and every public company and semi-public corporations that administrate the ports, with businessmen and workers representatives (articles 21 and 41); • A permanent forum for the qualification of port workers is created, with representatives of the Labor Ministry, SEP, the Education Ministry, the Brazilian Navy and others; (article 39) • The Labor Ministry will create a database (“SINE PORTO”) for port workers, aiming to organize the identification and offer of qualified labor for the port sector. The major criticism against the measure is that the new system ruled by the Decree centralizes all the important decisions at Brasilia (such as remove from the port administration the task of bidding new areas) and permits that the Union assign such decisions to the ports, after all the efforts that were made in the past in order to concentrate power at the Ruling Agency (“ANTAQ”) and at SEP. Another powerful critic is the reduction of powers issued to the Port Administration Council (“CAP”), contrary to the results of a study sponsored by the Brazilian National Development Bank (BNDES), according to Mr. Osvaldo Agripino, Harvard Ph.D. in Law. The Decree also left powerful opposition at its wake, concerning port worker’s rights, as the permission for Private Terminals to move third parties cargo without using independent workers duly registered at the Man work Management Authority - Órgão Gestor de Mão de Obra (Ogmo), may cause the noncompliance with Regulation 137 of the International Labor Organization (“ILO”), signed by Brazil. According to the workers representatives, the modification may cause legal uncertainty regarding the labor conditions and revenues guarantee of the port workers. However, not all is considered dire news. The new Decree aims to remove bottlenecks at ports regulamentation, increasing Brazil’s port capacity and improve efficiency, reducing the logistic cost. The new projects will be focused at the Northern region of Brazil, at the most important farmland and mineral frontier.
Posted on: Sat, 05 Oct 2013 18:03:05 +0000
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