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ANTAQ approves regulatory standard on storage services

The National Agency for Water Transport (Antaq) approved the norm that establishes regulatory parameters to be observed in the provision of container and volume handling and storage services at public and private port facilities, repealling the Resolution No. 2,389-Antaq, 2012.

Among other aspects, the now approved regulatory standard establishes criteria to be considered when billing the Terminal Handling Charge (THC) and the Segregation and Delivery Service (SSE), also known as THC-2.

The THC is the reimbursement of expenses for cargo handling services between the port terminal gate and the vessel’s side, including the transitory storage of cargo for the term agreed between the maritime carrier and the port facility or operator, in the case of exportation, or between the vessel’s side and its placement in the port terminal stack, in the case of importation.

SSE, on the other hand, refers to the collection, on importation, by the cargo handling service between the stack in the yard and the port terminal gate, not being part of the services paid by Box Rate, nor of the services whose expenses are reimbursed through the THC.

According to ANTAQ, prior to the billing of SSE, there will be electronic scheduling by the facility or port operator of operating windows to be made available continuously and regularly spaced, in order to serve all customers / users.The new rule applies to the private container handling terminals, in line with Law No. 12,815 / 2013 and Decree No. 9,046 / 2017.

Box Rate & Other Services

In accordance with the regulatory standard, the services contemplated in the Box Rate will be performed by the facility or port operator, upon remuneration freely negotiated, established by contract or disclosed in the price list.

In turn, the services not covered by the Box Rate and the storage, when demanded or requested by customers/ users of the terminal, will obey conditions and prices freely negotiated, with the maximum values being previously disclosed in price lists, in observation to the commercial conditions stipulated in the lease agreement and in the ANTAQ rules, forbidding abusive or harmful competition practices.

As a result, port facilities are required to disclose, with thirty days in advance, on their websites and terminal access, the maximum prices and detailed description of the services to be payed by the user, including application rules, deductibles and exemptions, if any.

CARF discusses binding precedent against ship agents

In an directive published this Tuesday (6), the Administrative Council of Tax Appeals (CARF) proposes fifty binding precedentt, among which is the Summary 49, by which “the cargo agent and the maritime agent, as representatives in the Brazil for the international carrier shall be liable for infringements committed in the carriage of goods ”. The draft may be approved at an extraordinary session at CARF’s headquarters on September 3.

This is another chapter in the long battle fought between the Tax Authority and ship agents- who suffer from the fact that the Federal Revenue imposes on them fines that should be aimed at the carrier/shipowners.

The summary statement proposed by CARF intends to give final contours to the imbroglio, but in a completely unfavorable outcome to ship agents – an essential figure for international maritime transport.

As agents of foreign shipowners who carry out international transport, ship agents perform the all-important task of dealing directly with the complex intricacies of the Brazilian bureaucracy.

In this regard, considering PROMARE’s mission to promote foreign trade, shipping mentality and Legal Certainty in and outside the courts, we express our utter disagreement about the CARF’s directive and proposed biding precedent.

Thus, in order to discuss and argue against the proposed biding precedent our office will attend the session at which CARF will deliberate on the approval.

Coastal Navigation incentive Program

A Coastal Navigation incentive program that the Ministry of Infrastructure intends to launch in August expects to expand the transport of goods along the Brazilian coast.

An interim measure is expected to bring about major changes in the industry’s regulatory framework, which has had an average annual growth of 12.8% over the past decade. Despite the Chinese economic pace, the government estimates that there is still plenty of room for expansion. The goals of the new program include doubling the volume of containers transported per year from the current 1.35 million to 2.7 million TEUs (20 foot equivalent unit) in 2022, and to increase by 40% the capacity of the maritime fleet dedicated to costal navigaiton in the next three years.

The plan, which has been called “BR do Mar” by the ministry’s technicians, foresees simultaneous and multi-front initiatives to stimulate the sector: more flexibility in the incorporation/import of new vessel by Brazilian shipping companies, easier use of port terminals aimed at handling cargo, a change in the guarantee system for access to the Merchant Marine Fund (FMM) and an attempt to end distortions in the charging of ICMS (state tax) on bunker.

“We are able to triple the growth rates of domestic shipping,” said Diogo Piloni, the national secretary of Ports and Waterways.

One of the Program’s greatest advances is the encouragement of the establishment of “special operations” – new routes that companies can offer on a trial basis linking one port to another.

To test a domestic route, one wil be temporarily free from the requirement to have own fleet (at least one ship imported or built in Brazil) to obtain registration as a Brazilian shipping company (EBN).

For a maximum period of four years, EBN may charter vessels without this obligation. The idea is to allow a test that paves the way for the establishment of longer lasting routes. Today one of the biggest obstacles to the development of coastal navigation is the lack of regularity of operations. “We are reversing the logic,” explains the director of the Department of Navigation and Waterways of the Ministry of Infrastructure, Dino Antunes Batista. “Today companies need to invest to enter the market. With our new Program they can enter the market and then decide how much to invest.

“When infrastructure is not available at the source or destination port, with a terminal capable of handling cargo carried on these experimental lines, companies can explore terminals through a simplified procedure – also for up to four years. This process promises to be less bureaucratic than a port terminal lease.

Shipping companies will gain an incentive to expand supply – not just special operations – with foreign vessels. They will earn exemption from federal taxes, such as Import Tax and PIS / Cofins, by incorporating ships manufactured abroad. These taxes increase equipment costs by 40% to 50%, according to government estimates, and will turn into credits.

The credits must necessarily be used in the Brazilian shipbuilding industry. It can be in the repair or maintenance of imported vessels, not just in the construction of ships. But gains from the exemption will need to be “returned” to national shipyards.

Another obstacle that the government intends to unlock with the MP is the guarantees for access to the billionaire Merchant Marine Fund (FMM). With different rates of financing for shipbuilding, the fund has been underused. The risk of loans rests with the credit transfer institutions – BNDES, Banco do Brasil, Caixa, Banco do Nordeste and Banco da Amazônia.

In the new program, the government will put into practice the “unenforceability of the linked account”. This means that a tax on the amount of freight that is collected by the shipping company and goes to itself, in a specific account for any FMM financing, can no longer be frozen or enforced against. As a result, banks will be collateralized and more comfortable with landing credit.

An additional goal of the Program is to match the price of fuel used in international (now ICMS-free) and domestic (15% to 18% tax) freight rates. The Union cannot legislate on state taxes, but has found a legal solution to allow the government of each state to clear the tax collection. Without this, any exemption would have to be endorsed by ever state on the National Council of Finance Policy (Confaz).

Brazilian Revenue will no longer charge IOF on export exchange

The Brazilian Federal Revenue will no longer charge the Tax on Financial Transactions (IOF) on foreign exchange transactions related to the entry of export revenues in Brazil. The Federal Official Gazette published on Wednesday (24) a consultation solution to clarify exporters on the incidence of IOF and reformulate their understanding from last year.

According to the National Confederation of Industry (CNI), at the end of last year, the Revenue began to demand the payment of 0.38% on foreign exchange that entered the country. At the time, the IRS’s interpretation was that the exemption would be restricted to those who internalized the export revenue on the same day of the export operation. According to the CNI Export Competitiveness Forum, companies were unable to perform the export exchange operation on the same day.

“The exporting companies were very worried. About 90% of these funds are internalized, but not on the same day, due to time zone, reserve to pay suppliers, among other reasons,” explained CNI Commercial Policy manager Constanza Negri, adding that the confederation presented several documents to question the Revenue’s change in interpretation of the rules.

At the time, CNI estimated losses of $ 3.7 billion to exporters this year, if the decision was upheld. According to Constanza, companies have even filed lawsuits against the IRS to maintain the exemption.

According to the consultation solution published in the DOU, in the case of foreign exchange operations related to the entry of goods and services export revenues into the country, the IOF tax rate is zero. However, deadlines must be met for companies to be exempt, according to the rules of the National Monetary Council (CMN) and the Central Bank. According to the document, the export exchange liquidation contract shall be entered into for prompt or future settlement, prior or subsequent to the shipment of the goods or the rendering of the service, observing the maximum period of 750 days between the export operation and liquidating the exchange contract in order to receive the export revenue.

What is the North Arc?

A person who doesn’t know Brazilian logistics and ports, having only knowledge of Brazilian geography, would have no difficulty imagining the widespread use of waterway and cabotage transportation. Bearing in mind the profusion of rivers that flow through our territory, specifically in northern Brazil and our extensive coastline.

However, the flow of Brazilian production for a long time was done in a way that is very contrary to the advice of reason and intelligence, using primarily the South and Southeast grain ports. Meanwhile, due to successive records in our harvests, coupled with rising Chinese demand, has resulted in numerous bottlenecks in the already overloaded South/Southeast grain ports.

Consequence? Higher transportation costs and longer trips to production areas. Therefore, exporters began a search for viable logistics alternatives in other parts of Brazil. Thus, each year, the flow of grain through ports in the North/Northeast region has been growing substantially.

The ports above the 16° S parallel compose the so-called North Arc, covering the terminals of the North and Northeast. Since 2015, the Arco Norte ports have been the second largest exit point for soybeans and corn.

Obviously there are several obstacles and challenges to overcome. However, expectations are that the Arc North will export to 50% of the soybean from the state of Mato Grosso as early as 2023. Despite the obstacles, it is clear that grain flow through the North Arc is a path of no return and that the volume increase in the coming years is a fact.

Regarding the challenges of the region to be overcome, it is necessary to highlight that in 2016 a legislative consultant of the Brazilian Congress wrote a dense study regarding the North Arc, raising the region as the best logistics route for Brazilian grains. The study indicates in a practical and detailed manner all the difficulties and challenges of the region. It also proposes several solutions. The Legislative Consultant is nothing less than Tarcísio Freitas, the current Minister of Infrastructure, who has been working together to ensure better infrastructure for the Northern Arc.

North Arc – keep this name in mind!

Compliance | Anti-corruption

In face of the current challenges of advocacy and the world scenario as a whole, and in line with our Values and Beliefs, we started implementing the Promare | Rabb Carvalho Advogados Compliance Program.

Our Compliance Program is focused on creating a set of internal integrity mechanisms and procedures in the fight against corruption, encouraging, through preventive and ostensive measures, the adoption of conduct in accordance with the ethical laws applicable to advocacy as well as to the field of performance of our customers.

Thus, our Program is one of the six main pillars:

  • Identifying and encouraging compliance with laws and regulations, including anti-corruption legislation and policies;
  • The creation of an internal control mechanism for the implementation, execution and monitoring of the program;
  • Encouraging its direct and third-party employees to comply with the Promare Code of Ethics and Conduct and anti-corruption laws and regulations;
  • Preventive action to prevent fraud and illicit;
  • The establishment of disciplinary measures and remediation of possible damages in case of violation to the standards related to Compliance Promare | Rabb Carvalho Advogados
  • The adoption of transparency regarding donation to candidates and political parties.

Our team, aware that the corporate conduct is materialized through the actions of each of its employees, identified three main norms that regulate its activity: the Law Statute, the Penal Code and the Anti-Corruption Law.

Compliance with the rules, besides avoiding the application of penalties, brings other fundamental benefits. The main thing is maintaining a working working environment. Another benefit is the good reputation in the market and the good acceptance of the public opinion, since the Brazilian society does not tolerate more companies with the name related to corruptive practices, valuing even more those that maintains its reputation unblemished.

The RC | LAW Compliance Department is an independent communication channel for members of the office as well as anyone who is aware of the practice of unethical acts by any member of staff. The compliance department´s governed by an anti-recrimination policy, according to which no one will be harmed by making a complaint in good faith.

The communication channel receives reports with the indicated authorship or even anonymous ones, always guaranteeing the confidentiality with respect to the data of the one that uses the Compliance department. The channel is available to all, and can be accessed through the email: [email protected].