Santos Port Authority appeals Antaq order to cut tariffs, denies noncompliance

The Santos Port Authority (APS) maintains that it complied with the determination issued by the National Waterway Transport Agency (Antaq) and went beyond the required 34.6% reduction in land access fees (Table III) charged to operators, as stated in the decision, by suspending billing altogether. The state-owned company has already filed an appeal.

Antaq’s ruling, issued on 2 September, was motivated by the APS’s failure to carry out the planned works despite collecting more than R$600 million from this tariff between 2022 and 2024. The complaint came from the São Paulo State Port Operators’ Union (Sopesp). Following the decision, the union informed Antaq that APS had not complied with the measure and had issued full charges to operators.

The Port Authority argues that it was officially notified of Antaq’s decision on 15 September. From that date, the company says it suspended billing related to Table III. APS also stated that after receiving the notification, it convened a board meeting to approve the suspension of charges.

In the argument presented to Antaq, the Port Authority explained that, although it issued invoices after that date, they referred to previous charges.

“The triggering event, at the port, is the berthing of the vessel, which marks the start of the tariff calculation, beginning at berthing and ending when the vessel’s operation is completed,” APS said. Therefore, the invoices identified by Sopesp as undue by the Port Authority of Santos refer to operations carried out before 15 September, when the decision had not yet been received.

Deadline

The state-owned company stresses that Antaq’s decision disregarded the rules set out in its Resolution 61/2021, which governs the port tariff system and establishes a minimum ten-day period between the publication of a tariff change and its entry into force.

One of the points raised in the appeal is Antaq’s authority to impose compulsory reductions in port tariffs. According to the Port Authority, it is up to the Port Authority itself to define discount policies and assume the resulting risks, while the Agency does not have the prerogative to impose mandatory discounts.

“Therefore, if Antaq does not reconsider its decision, APS states its intention to take the matter to court.”

Arguments behind the decision

When contacted by the press, Antaq did not respond by the time of publication.

In a board decision signed by then acting director-general of Antaq, Caio Farias, and published in the Federal Official Gazette on 2 September, reporting director Flávia Takafashi considered a full suspension of Table III, as requested by Sopesp, to be too drastic a measure.

However, she disagreed with the 7.97% reduction proposed by the Regulatory Superintendence. The index was deemed “insufficient to achieve the desired goal — which is to encourage APS to carry out the improvements the Port needs — and should instead be set at 34.6%.” All directors voted in favor of the rapporteur’s opinion.

“I believe that this regulatory agency cannot condone the Port Authority’s leniency (slowness) in carrying out the necessary investments,” stated Flávia.

The 34.6% figure is not arbitrary. In April 2021, APS approved an investment schedule with four planned works: the perimetral avenues on the Right Bank (Alemoa section) and Left Bank (second phase), improvements to the access to Barnabé Island, and the restoration and shoring of Warehouses 01 to 11.

In November of the same year, the investments (R$936 million) and deadlines were formalized, with work to begin by November of last year and to be completed by November 2028.

“After that, APS presented a new schedule, informing a change in the scope of the investments, indicating that only 65.4% of the approved investment volume would be completed within the originally approved deadline, and the remaining 34.6% would be placed into a compensatory account for the next tariff review,” wrote Flávia Takafashi.

Justifications

APS states that, without a grace period and without following the proper procedures to reduce tariffs, it is compelled to immediately modify its billing and invoicing systems without sufficient time for adaptation, “in addition to exposing itself to potential litigation from users who may question the validity of the charges made.”

The company also claims that Antaq’s decision merely imposed a linear 34.6% reduction without addressing the issue of normative and regulatory authority to do so, which constitutes a relevant omission sufficient to justify the supplementation of the ruling.

“At no time was it indicated that the Agency could, through a direct decision, impose a linear discount on port tariffs.”

Source: A Tribuna

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