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The Brazilian National Agency of Petroleum, Natural Gas and Biofuels (“ANP”) published, on March 17, 2020, the ANP Resolution No. 811/2020, which revoked the ANP Ordinance No. 170/2002, altering the regulation of the activity of waterway transportation of petroleum, its by-products, natural gas and biofuels and regulating the transshipment operation between vessels (“ship-to-ship”) in Brazilian jurisdictional waters.

Please find below our comments on the main changes introduced by the new resolution, which will take effect on April 1, 2020.

Waterway transportation

The new resolution aimed at updating the regulations on the subject. In addition, it maintained the obligation that all bulk cargo transportation of petroleum, its by-products, natural gas and biofuels for cabotage, offshore supply, port support and inland navigation must be carried out by Brazilian shipping companies (“EBNs”), duly authorized by the ANP.

No changes were made to waterway transportation regulations regarding the import and export of the aforesaid products, which may be carried out by a foreign shipping company – in the case of imports – and must be carried out by a Brazilian company – in the case of exports.

In addition, the new resolution provides that concessionaires or contractors of petroleum and natural gas exploration and production activities that are not EBNs must execute a contract with a duly authorized EBN to carry out the waterway transportation of such products.

As for the request for authorization for transportation before the ANP, the new resolution expands and describes in more detail the list of documents to be presented, which includes corporate documents, environmental licenses and authorization to operate granted by ANTAQ. The deadline for the analysis by the ANP and the granting of the corresponding authorization was extended from 30 to 60 days.

Among the obligations of authorized EBNs, we highlight the following:

• The EBN must operate only in duly authorized terminals, ports and points of location, which are by the ANP and other relevant bodies, when in national territory. The definition of “duly authorized points of location” now includes platforms, FPSOs and FSUs.

• Each vessel must have a copy of the authorization granted by the ANP to perform the transportation activities covered by the resolution.

Pursuant to the new resolution, EBNs that already hold ANP authorization for bulk cargo transportation do not need to request a new authorization.

Ship-to-ship

Regarding ship-to-ship transfer operations, the new resolution (ANP Resolution No. 811/2020) provides that the operations may occur under the following alternatives:

• vessels that are moored or anchored in a sheltered area;

• vessels in motion in an area where anchoring is not possible (ship to ship underway); or

• hybrid transfers, in which the approach and mooring occur during movement and the transfer is done with one of the anchored vessels.

The performance of these transfers must be preceded by ANP’s specific authorization, except: (i) for vessels of any nature, when it involves supplying of ships (bunkering), and (ii) in oil transfer operations related to fixed or floating platforms, including drilling platforms, FPSOs, as well as other floating storage units (FSU) for produced oil.

It is worth noting that the authorization for ship-to-ship transfers introduced by the new resolution does not cover loading and unloading operations carried out at LNG terminals and inland and water terminals authorized by ANP, under the terms of the ANP Resolution No. 52/2015.

Regarding the authorization for waterway transportation and ship-to-ship transfer operations specifically related to biofuels, the relevant agent must be in compliance with its obligations before the Federal, State and Municipal tax authorities, as well as it must be able to demonstrate debt clearance before the ANP.

Companies that perform ship-to-ship transfer operations in Brazilian jurisdictional waters must request authorization to carry out such activity within 120 days, counted from the date on which the new resolution takes effect.

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