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Federal regulatory agency ANTAQ issued an injunction order suspending the enforcement of the new regulation introduced by the Santos Port Authority
Update 25 July 2025: In yet In yet a further development concerning the dispute over the new ballast water regulatory framework, involving on one side the Santos Port Authority (APS) and, on the other side, the federal regulatory agency (ANTAQ) and shipowners associations (Centronave and ABAC), a federal court in Brazil’s capital, Brasilia, where ANTAQ is headquartered, has granted a writ of mandamus in favour of the APS. This ruling revokes previous decisions which had declared the port authority’s Ordinance OPR.023.2024 null and void. This ordinance reinstated requirements for ballast water controls that go beyond those outlined by the IMO BWM Regulation and the Brazilian maritime authority standards (NORMAM-401/DPC).
A copy of APS’ press release, along with a free translation in English, can be downloaded here.
In early July, ABAC and Centronave commenced ordinary proceedings against APS before a federal court in Santos, which eventually overturned the regulation implemented by the port authority. The first instance decision ordered APS to refund amounts paid by shipowners during the period when the charge was reinstated last February, up until the court’s decision. APS has since appealed this decision, triggering a suspensive effect that allows the new regulation to remain in effect pending a review by the federal appellate court, the Federal Regional Court (TRF).
Given the conflicting rulings from federal courts in Brasília and Santos, shipowners are advised to adhere to the APS procedures and continue paying the required amounts until the federal justice renders a final, unappealable decision. This outcome may extend over several years. The advantage of this approach is that, should the court rule in favour of the shipowners, they would be entitled to reimbursement for all payments made during the enforcement of the regulation, along with accrued interest and monetary adjustments.
Update 8 July 2025: in yet another development in the dispute between APS and shipowners’ associations concerning ballast water management regulations, the 1st Federal Court of Santos ruled on 3 July 2025 in favour of the co-plaintiffs National Centre of Transatlantic Navigation (Centronave) and the Brazilian Association of Cabotage Shipowners (ABAC). The court nullified the controversial APS regulation and ordered it to refund the amounts paid under this regulation, adjusted for inflation. Additionally, APS was condemned to cover the legal costs and winning attorneys’ fees, which were set at 10% of the value of the dispute. To date, APS has not publicly announced whether it plans to appeal the lower federal court’s decision.
Update 13 February 2025: in a new twist, the ballast water regulation at the Port of Santos is back in effect following a ruling by the Federal Regional Court of the 1st Region in Brasilia. The Santos Port Authority (APS) announced that the regulation will take effect from today. A translation of the APS press release is available for download here.
Update 18 December 2024: in a judgment session held on 12 December 2024, the board of ANTAQ unanimously decided to annul the Santos Port Authority (APS) Resolution NAP.SUMAS.OPR.023.2024 for good. The federal regulatory agency temporarily suspended this resolution in September. While APS is entitled to file an administrative appeal, it is unlikely it will take that step.
Update 9 September 2024: the Santos Port Authority issued a press release reluctantly accepting the ANTAQ ruling; however, it has stated its intention to seek reconsideration of the suspension of the new regulation. A copy of the document with an English translation can be downloaded here.
New requirement
As this circular outlines, the Santos Port Authority (APS) has implemented a new “Standard for Control of Management and Conformity of Ballast Water from Ships Operating in the Organised Port of Santos”, coded NAP.SUMAS.OPR.023.2024. It requires all vessels calling at Latin America’s largest port complex to submit to the APS a statement of compliance, known as an AC-BWM, issued by a private company accredited by the APS proving adherence to the IMO BWM Convention and its domestic regulation by the Brazilian Navy’s Directorate of Ports and Coasts (DPC) through the “Maritime Authority Standards for the Prevention of Environmental Pollution Caused by Ships and Platforms” NORMAM-401/DPC.
Under the new regulation, which took effect on 21 August 2024, ships that fail to produce an approved AC-BWM will not be permitted to enter the port and berth for cargo operations. It provided a 12-month grace period within which ships with a failed AC-BWM can still operate. Non-compliance would, nevertheless, be reported to the local maritime authority. Owners whose ships have failed the certification are entitled to appeal through adversarial proceedings with a full right of defence.
Agents must apply for the AC-BWM at least 24 hours before the vessel arrives at Santos. The certification is valid for only one call.
At present, only one company has been accredited by the APS. It charges a fee of USD 1,390 for ships whose agents are affiliated with the local union of shipping agents (Sindamar) and USD 1,700 for non-members.
Shipping community reaction
APS new regulation has sparked adverse reactions from the shipping community, including the International Chamber of Shipping (ICS). The move has raised concerns over potential operational delays, increased administrative burden due to duplicated ballast water reporting requirements, and higher costs. This could negatively impact the competitiveness and ultimately lead to a freight hike. There is also a worry that other port authorities would follow suit.
ANTAQ injunction order
The National Centre of Transatlantic Navigation (Centronave), a union of foreign shipping lines operating in Brazil, and the Brazilian Association of Cabotage Shipowners (ABAC) filed a complaint to the National Agency of Waterway Transport (ANTAQ), highlighting the following main points:
- Although the regulation was issued in May 2024, it was only in August 2024 that APS informed the local shipping community about it
- APS addressed none of the formal inquiries made by the local Union of Shipping Agents (Sindamar), Santos Board of Trade (ACS), and Centronave seeking clarification on various aspects of the new requirements
- APS accredited just one company, offending the rules of public service tendering, despite APS being a state-owned dock company
- The regulation extrapolates APS’ competence and encroaches on the jurisdiction of the maritime authority, which is the federal entity responsible for enforcing the BWM Convention in Brazil
- Without consulting the proper regulatory agency, ANTAQ, APS created a new port tariff that significantly impacts the economy
- The fees charged by the APS-accredited company do not conform to the principle of moderate tariffs provided for in the Law of the Ports and the principle of legality enshrined in the Federal Constitution
On 4 September 2024, ANTAQ acknowledged the arguments presented by Centronave and ABAC and issued an injunction order inaudita altera parte (without hearing the other party), immediately suspending the enforcement of regulation NAP.SUMAS.OPR.023.2024, as well as the collection of any fees, as it conflicts with the maritime authority’s standards and regulations. APS was given a 30-day deadline to challenge the decision.
ANTAQ also referred the dispute to the DPC and invited the maritime authority to contribute to the decision regarding the complaint’s merits.
A plenary session of the ANTAQ board will render the ultimate decision at the administrative level.
Published 6 September 2024. Updated 25 July 2025.
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