Who should pay the port use rate? Look here!

The Regulation of the National Ports Tariff System establishes the differences between rates and tariffs. These definitions are important for concessionaires, authorized companies, and other port service professionals. In addition to them, it is important to understand which payments should be made and who needs to bear the port utilization fee.

To learn more about the topic, we interviewed Jefferson Nascimento, a specialist in foreign trade, responsible for Customs Consultancy and Advisory (Foreign Trade, Customs Consultancy and Advisory – Import / Export / Logistics). He talks about some formalities involved in the payment of fees and tariffs for port use and clarifies who should perform it.

So, if you want to understand more about this topic, continue reading this content!

How do the rules deal with fees and tariffs work?

Before checking who should pay the port usage fee, it is necessary to understand the origin of the changes and the specific legislation. In addition, it is necessary to know those responsible for approving, approving, and setting readjustments and reviews of port services.

In summary, the rules dealing with port fees and tariffs are regulated by the National Waterway Transport Agency (ANTAQ). Thus, it is up to it to carry out each of the processes. For this, it must always be in accordance with the criteria established by Ordinance MF nº 118, of May 17, 2002, of the Ministry of Finance.

According to Nascimento, these points are linked to the following rules:

• art. 70, Items I and II, of Law No. 9,069, of June 29, 1995.
• art. 27, Item VI, of Law No. 10,233, of June 5, 2001.
• Annex I, of Chapter I, of Article 3, Item VIII, of Decree No. 4,122, of February 13, 2002.
• MF Ordinance 118, of May 17, 2002.
• art. 27, Item VII, of Law No. 10,233, of June 5, 2001 (amended by Law No. 13,848, of June 25, 2019).

According to the professional, “it is worth mentioning that the exploration by the Union, directly or indirectly, of ports and port facilities and of the activities performed by port operators and all guidelines are regulated by Law No. 12,815, of June 5, 2013. It is known as the Ports Law, regulated by Decree No. 8,033, of June 27, 2013”.

Any port tariff change must comply with the rules, as these are legally competent for any modification.

What is the difference between fees and tariffs?

Knowing the appropriate laws behind the payment of port taxes and tariffs, bringing ample possibilities for research on the subject, it is time to understand the difference between these two terms.

Nascimento talks about this subject, pointing out that, over the years, it has become normal to say that the concepts of port fee and tariff are similar. However, they are quite different. At first, the specialist explains a general definition in relation to them. “Fees and/or fees are usually charged for using a particular service. It is a tax paid in favor of the one who pays it”, he says.

It then clarifies the differences between the meanings of the terms. “Tariff can be defined as the public price, the monetary value of which is established by ANTAQ and is fixed in Reais per collection unit. The fee, on the other hand, refers to the prices due for the provision of public services”.

These concepts even agree with Normative Resolution No. 32 of ANTAQ (amended by Resolution No. 7821-ANTAQ, of June 19, 2020, Art. 5, Item XX).

Nascimento ends: “Another point to be noted is that ANTAQ is standardizing the tariff structures of the Port Administrations. It is even granting a deadline for Port Administrations to submit proposals, as stated in the ANTAQ bulletin of 9/14/2020”.

It is worth mentioning that this standardization is provided for in Art. 33, of Normative Resolution nº 32-ANTAQ. However, it is important to note that the simple adaptation to the new tariff structure provided for in this standard, or the inclusion of one or more standardized modalities does not necessarily characterize a request for tariff review, as provided for in § 1, of Article 33, of Normative Resolution nº 32-ANTAQ. (Amended by Resolution No. 7821- ANTAQ, of June 19, 2020).

Who should pay the port usage fee?

With the distinction between tariff and fee in mind, it is important to know who should pay for the port usage fee. The interviewee brings the provision of Art. 2, of Normative Resolution nº 32-ANTAQ (amended by Resolution nº 7821-ANTAQ, of June 19, 2020) to talk about the subject.

According to him, in accordance with the law, “any company, user or requester, national or foreign, natural or legal person, who operates within the organized port, will obey the tariff order determined and approved by ANTAQ for the respective Port Administration”.

In addition to this text, it is also possible to observe the wording of Article 9, Item I, of Normative Resolution No. 18-ANTAQ, of December 21, 2017. They inform that “it is the user’s duty – without prejudice to others established in specific legislation and in the contract, and, as applicable, to the type of navigation performed – to pay the amounts related to the services, operations and contracted availability”.

The interviewee recalls that it is an administrative infraction to charge prices, ocean freights, fees or surcharges that have not been previously agreed. The same thing can be said about charging amounts different from the legal relationship established in the contract.

Thus, it is understood that any professional who operates within the organized port must pay the port usage fee. In this sense, it is important to highlight:

• dealers
• companies authorized to provide port services
• port users

It is also necessary to be aware of the possible variation in sea freight, capable of being approved, at any time, by ANTAQ.

How can the shipping agency help?

When knowing all this information, it is interesting to question what the role of a maritime agency in Brazil in terms of compliance is. Nascimento talks about this point: “Since it is a representative of the professional of transport / maritime chartering / maritime chartering and even before the authorities and / or users, and is the major logistics operator in the Ports, the agency has extensive know-how. Thus, it becomes indispensable in the relationship between contractor and contractor”.

The specialist also points out that the structure of this service is set up to facilitate operational logistics. In this way, it is also essential in contractual relations. “With all the expertise of the maritime agency, it is able to help define, for example: tariff standards, rights and duties – especially since, as we can see, rates and tariffs can cause doubts as to their application – in the modification and standardization of norms, among other points”, he concludes.

Therefore, having a specialized team can help professionals, such as charterers, to understand whether to pay the port utilization fee. In addition, they will optimize other aspects involved in logistics and legislation related to the area.

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