On September 13, 2010, Decree No. 7296 was published inserting Article 461-A into the Customs Regulation, Decree No. 6,759/2009. Article 461-A concerns the qualification for the specific customs export and import regime in connection with goods intended for research and extraction of petroleum and natural gas (“REPETRO”).
Item II § 1 of Article 461-A expressly indicates that any legal entity that is engaged by the holder of a concession or license either on time charter or for the provision of services intended to implement the activities contemplated by the concession or license can qualify for the regime. As a result, the argument that qualification for REPETRO would apply simply and solely to “provision of services” business is definitely ruled out.
Paragraph 2 of this new Article provides that contractors (or subcontractors) can also qualify for REPETRO to import goods under the chartered party to the extent that the import transaction is provided for in the service agreement or time charter.
In addition, under § 3, if the contracted legal entity has no head office in Brazil, it may designate a company based in the country to arrange for the import of goods. This other company can also apply and qualify for REPETRO and, pursuant to § 4 of Article 461-A, it only needs to identify the contractor’s designee in the service agreement or time charter party.
Customs authorities had been disputing the configuration of agreements used to support the entry of goods intended for use in the oil industry, such as the time charter model approved by ANTAQ (National Agency for Water Transport) and PETROBRAS. Paragraphs 5 and 6 of the new Article are intended to regulate this matter.
It has been determined that the REPETRO qualification of the legal entity that provides the services related to the operation of maritime support vessels will be contingent on proof of that entity’s qualification from the National Agency of Water Transport - ANTAQ as a Brazilian ship operating company. However, the decree emphasized that the REPETRO qualification process will not assess the compliance with any regulatory requirements allowing chartering of maritime support vessels, as this is within the ANTAQ’s purview.
There has been much ambiguity and doubt regarding this application process, as many companies have had their applications denied due to the manner in which contracts were drafted based on the interpretation of the ANTAQ regulation. Decree No. 7296 is apparently meant to supersede that regulation and clarify the extent and scope of the customs authorities’ powers regarding the granting and concession of such regime.
For more information about Decree No. 7296 or any other matter raised in this Legal Update, please contact , and .
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