Check out our Energy Newsletter, which gathers information on the main administrative, normative and legal texts related to the regulation of the electricity sector in Brazil, for the month of October.
We are available to help you with any questions and hear your ideas and suggestions on how we can improve even more.
Demarest Energy and Natural Resources Team
MME publishes ordinance amending guidelines for Capacity Reserve Auction
On September 30, 2021, the MME published Normative Ordinance No. 27/GM/MME/2021, amending Normative Ordinance No. 20/GM/MME/2021, which provides the guidelines for the Reserve Capacity Auction, 2021, scheduled to take place on December 21, 2021.
We highlight the following changes:
- In the negotiation of the “Power” Product, new power generation projects that utilize thermoelectric sources with operational flexibility characteristics that allows for meeting the totality of the daily orders established by the ONS, without harm to the next day’s service, and whose operational inflexibility of annual generation is up to 30%, will be able to participate in the Reserve Capacity Auction if also winners of the “Energy” Product;
- For the PPAs to be negotiated in the “Power” Product, the tariff adjustment criteria defined in Ordinance No. 42/GM/MME/2007 do not apply for this subject. Ordinance No. 42/GM/MME/2007 provides the criteria that must be observed by ANEEL for the purposes of preparing the Notices of Energy Auctions targeting new projects and their respective Energy Trading Contracts in the Regulated Environment – CCEARs;
- Businesses that intend to propose the inclusion of generation projects in the 2021 Reserve Capacity Auction must inform the parameters and prices that form the portion of the Variable Unit Cost (CVU) and Operational Inflexibility by noon on October 13, 2021;
- Exceptionally for the 2021 Reserve Capacity Auction, the Prior License (LP), the Installation License (LI) or the Operating License (LO), all issued by the competent environmental agency, should have been filed with the Energy Research Company (EPE) by October 14, 2021;
- Existing power generation projects that have energy sales contracts in force, with a supply start date of July 1, 2026 onwards, and duly registered with the CCEE will not be technically qualified by the EPE;
- For thermoelectric projects, the availability of fuel for continuous operation must be proven.
CCEE approves proposal of payment in installments for agents who adhere to GSF renegotiation
On October 1, 2021, in another measure to put an end to the complicated situation regarding the Generation Scaling Factor (GSF), the Chamber of Electric Energy Commercialization (“CCEE”) announced the approval of a proposal that enables agents who have not yet paid their debts related to hydrological risk to make the payment in installments. Companies that adhere to the proposal for a renegotiation and withdraw from legal proceedings on the subject may choose to pay their liabilities in up to 12 installments.
In addition to the aforementioned measure, as reported on October 13, 2021 in the financial settlement of the Short-Term Market (MCP) in August, 54 generators were already responsible for 106 payments related to the deadlock on hydrological risk, reducing the amount retained to the current BRL 1.2 billion.
See in full – Communication on the MCP
ANEEL carries out Simplified Competitive Procedure: Measures during the month of October and results.
On October 25, 2021, the Simplified Competitive Procedure (“PCS”) No. 01/2021-ANEEL took place, aiming to contract Reserve Capacity, in the form of Reserve Energy, pursuant to article 3 and art. 3-A of Law No. 10,848/2004, Decree No. 6,353/2008, Resolution No. 4/2021, the Chamber of Exceptional Rules for Hydroenergy Management (“CREG”), and the guidelines established in Normative Ordinance No. 24/GM/MME/2021. The PCS is one of the measures being taken by the bodies of the power sector to mitigate the effects of the water crisis currently being experienced in the country and continuity of the hydroelectric supply of the National Interconnected System (“SIN”).
Notice of summons. On October 6, 2021, ANEEL published Notice to Convene and Public Notice of the PCS. Those interested in participating had until October 8, 2021 to request clarifications and until October 15, 2021 for submitting proposal guarantees.
Guidelines approved. On the same day, October 6, 2021, ANEEL approved guidelines for the PCS through Orders No. 3,119/2021 and 3,120/2021, related to access to transmission and distribution systems, respectively. Among the guidelines, it should be highlighted that the access to transmission and distribution facilities by the PCS winning projects would be the sole and exclusive responsibility of the generation agents, conditioned to the payment of the Transmission and Distribution System Usage Fees (TUST and TUSD). Furthermore, the Contracts for the Use of the Transmission and Distribution System (CUST and CUSD) must be signed by the generation agents within 15 (fifteen) days from the issuance of the Equivalent Access Document (for transmission) or Access Opinion (for distributors).
Project Registration. As published by the Energy Research Company (“EPE”), 972 projects were registered, totaling 62 GW. One of the particularities of the PCS is that it is a process that does not require technical qualification of projects by the EPE.
Physical guarantee of UTEs. On October 21, 2021, Ordinance No. 5/2021 of the EPE’s Directorate of Electric Energy Studies was published, defining the amounts of physical energy guarantee of thermal power plants (UTEs) for natural gas, fuel oil and diesel oil, needed for entities interested in participating in the PCS. As provided for in the Ordinance, the physical energy guarantees of the entities defined in the form of the Annex will lose their validity and effectiveness after the PCS if they are not subject to Reserve Energy Contracts (CER).
Result of the Procedure. The PCS public session took place on October 25, 2021. In total, 775.8 megawatts (MWm) were contracted. In the Quantity category, 3 (three) entities negotiated energy. The average price was BRL 343.22 per megawatt-hour (MWh), with a discount of 1.09%. In the Availability category, 14 (fourteen) entities sold energy, all of which were natural gas thermal power plants. The energy was contracted at an average price of BRL 1,599.47 per megawatt-hour (BRL/MWh), with an average discount of 1.2%. See the summary of the results below, published by ANEEL:
|Category||States||Fuel||Power (MW)||Contracted Lots (MW avg.)|
|Quantity||MT and RO||Wood chip and photovoltaic solar||43,000||22,2|
|Availability||ES, MS, PR, RJ, SC and SP||Natural Gas (GN)||1.177,793||753,6|
Read in full – Issuance PDF No. 01/2021
Read in full – Order No. 3,119/2021
Read in full – Order No. 3,120/2021
Read in full – EPE Report – Project Registration
Decree regulating the Water Code is repealed
On September 28, 2021, Decree No. 10,810/2021 was published, which declared the repeal, for the purposes of article 16 of Complementary Law No. 95/1998, of a series of normative decrees, including Decree No. 41,019/1957. Decree No. 41,019/1957 regulated the electricity services provided for in the Water Code and was a milestone of great relevance for the sector since it contained guidelines that today are part of the history of the regulation of the electricity sector.
Read in full – Decree No. 10,810/2021
Read in full – Decree No. 41,019/1957 (repealed)
ANEEL Approves Trading Rule for Unsupplied Energy Calculation resulting from Constrained-off Wind Power Plants
On October 4, 2021, ANEEL published Order No. 3,080/2021, which approves the Energy Trading Rule, establishing a methodology for calculating unsupplied energy arising from Constrained-off wind power plants subject to Energy Trading Contracts in the Regulated Environment (CCEAR) for availability and Reserve Energy Contracts (CER).
This Rule stems from the provision of Article 8 of ANEEL Normative Resolution No. 927/2021 on the subject, which provides that restricted operation of wind power plants or sets of wind power plants in the Regulated Contracting Environment (“ACR”) due to the incidence of “Constrained-off” events (also referred to as “curtailment”) that occurred before October 2021 will be treated in accordance with the Energy Trading Rule, which establishes the specific calculation methodology.
The rules (i) are limited to the CER and CCEAR; (ii) are applicable only to events caused by energy restrictions in wind power plants’ external installations that are subject to calculation of the amounts of energy not supplied; (iii) require that the period of the event and the specific wind power plants that were affected by the restrictions should be informed by the ONS; (iv) establish that the amount of energy not supplied shall be limited to the amount necessary for fulfilling the requirements of the contract; (v) establish that the values of unsupplied energy shall be calculated in proportion to the commercial operating factor of the wind power plants and the commitment factor with the contract; and (vi) establish that the values of energy not supplied should also be applied to the contractual reconciliation processes.
Read in full – Dispatch
Read in full – Energy Trading Rule
CMSE defines new strategies for the country’s water crisis
On October 5, 2021, the Power Sector Monitoring Committee (CMSE) met to evaluate the conditions of power supply to the National Interconnected System (SIN). After evaluation, the Committee defined new additional strategies for the water crisis that the country is facing:
- Continuity of hydraulic flexibilities in the Jupiá and Porto Primavera hydroelectric plants in the next wet and dry periods, between December/2021 and October/2022;
- Optimization of resources not centrally dispatched, by modulating generation according to the systemic needs to meet the maximum demand of the SIN, whenever possible;
- Presentation of studies for the operation of the Belo Monte hydroelectric power plant in the wet period of 2022;
- Approval of additional offers received under the MME Regulatory Ordinances No. 17/2021 and 22/2021, which were approved in technical meetings of the CMSE Working Group to monitor the conditions of service to the SIN.
ANEEL opens Public Call for Energy Efficiency projects in hospitals
On October 5, 2021, ANEEL announced the opening of the Public Call for the Priority Energy Efficiency Project No. 003/2020, which aims to procure from interested distributors projects of Energy Efficiency solutions for public hospitals or for those that hold the Social Assistance Charities Certification (CEBAS). The improvement of internal electrical installations of hospital buildings will also be contemplated.
STJ removes plant affected by the Mariana (MG) tragedy from the MRE
On October 6, 2021, The Special Court of the Superior Court of Justice (STJ) accepted a request made by the National Electric Energy Agency (ANEEL) on the Suspension of Injunction and Judgment No. 2805, to remove the Risoleta Neves Hydroelectric Power Plant from the Power Relocation Mechanism (“MRE”). The plant has been inoperative since 2015 when the Fundão Dam burst occurred in Mariana, in the state of Minas Gerais (MG).
As concluded by the Rapporteur, Minister Humberto Martins, “the consortium continued to generate revenue from the sale of energy without real generation, to the detriment of the resources generated by other plants that are part of the MRE system“.
ANEEL approves draft concession contracts mentioned in the Eletrobras Privatization Law
On October 8, 2021, ANEEL published Order No. 3,137/2021, which approves and forwards to the Ministry of Mines and Energy (“MME”) the draft concession contracts that will regulate the commercialization of the hydraulic energy potentials covered by Law No. 14.182/2021, which deals with the privatization of Eletrobras. The drafts are related to contracts of 11 (eleven) plants of the subsidiary Chesf, 3 (three) plants of the subsidiary Eletronorte and 8 (eight) plants of the subsidiary Furnas, which will cease to be quota plants, moving to the independent energy production regime.
ANEEL will initiate the 2nd Phase of Public Consultation on reinforcements and improvements in electricity transmission facilities
On October 13, 2021, ANEEL deliberated at its 38th Public Board Meeting on the opening of the Second Phase of Public Consultation No. 30/2020, aiming to collect additional information regarding the Regulatory Impact Analysis (“AIR”) that deals with the evaluation and improvement of regulations associated with reinforcements and improvements in electricity transmission facilities and associated regulatory improvement proposals.
The Proposal was made by the Superintendencies of ANEEL, jointly, through Technical Note No. 93/2021 – SRT-SCT-SFE-SFF-SGT-SRM/ANEEL, which identified the need for improvements in regulation, addressed in the Regulatory Impact Analysis Report No. 5/2021-SRT/SCT/SFE/SFF/SGT/SGT/SRM/ANEEL. We highlight below the main improvements proposed:
- Establishment of an explicit definition of: large reinforcements; small reinforcements; major improvements; and, small improvements;
- Regarding the procedures for authorization and establishment of Allowed Annual Revenue (Receita Anual Permitida, or “RAP”, in Portuguese) for reinforcements, the objective of greater operational efficiency, a new proposal for authorization procedures and establishment of RAP for small reinforcements was presented;
- Full decoupling of large and small reinforcements, which are now authorized separately regardless of the case;
- Delegation to the Superintendence of Concessions, Permissions and Authorizations of Transmission and Distribution (SCT) so that it can change, through official notices, the requirements for registration of reinforcements and improvements, via an electronic platform provided by the ONS, in order to allow greater flexibility and efficiency to the process;
- New normative concept of improvements, according to ANEEL, based on the accounting logic of investment, differentiating them from operation and maintenance activities;
- New procedure for handling of large equipment claims in a timely manner so as not to compromise the re-establishment of transmission functions relevant to the SIN.
Interested parties can offer contributions to the AIR until November 29, 2021.
ANEEL approves new Trading Rules and Procedures applicable to the Accounting and Settlement System
On October 13, 2021 ANEEL published Normative Resolution No. 946/2021, which approves the Electric Energy Trading Rules applicable to the Accounting and Settlement System (“SCL”) and the Power Trading Procedures.
The newly approved versions of the Rules include the Module on Physical Guarantee, Exposure Processing and Energy Relocation Mechanism. The newly approved version of the Power Trading Procedures is aimed at Submodule 3.3. – Seasonal adjustment and revision of the Physical Guarantee Seasonal adjustment. The Chamber of Electric Energy Commercialization (“CCEE”) was also requested to carry out the processing of recalculation under the provisions of the approved rules.
These changes stem from Public Consultation No. 027/2021, which sought to obtain information on changes to the Rules and Procedures to include regulatory processing of financial exposures of secondary energy and for the seasonal adjustment of the physical guarantee for the MRE, provided for in Normative Resolutions No. 898 and 899/2020.
ENPpar will be operational body of the Programs “Luz para Todos” and “Mais Luz” for the Amazon
On October 13, 2021, the Ministry of Mines and Energy (“MME”) published Ordinance No. 556/GM/MME/2021, which designated Empresa Brasileira de Participações em Energia Nuclear e Binacional S.A. (“ENBpar”) as the operational body of the National Program for the Universalization of Access and Use of Electricity – “LUZ PARA TODOS” (“Light for All”, in English) – and the National Program for the Universalization of Access and Use of Electricity in the Legal Amazon – “Mais Luz para a Amazônia” (“More Light for the Amazon”, in English) -, whose competence will be assumed within twelve months from the date of the ratification meeting that approved the result of the increase in the share capital of Centrais Elétricas Brasileiras S.A. (Eletrobras).
CPPI approves operational modality, adjustments and conditions for privatization of Eletrobras
On October 20, 2021, the Resolution of the Council of Investment Partnerships Program (CPPI) No. 203/2021 was published, approving the operational modality, adjustments and conditions for the privatization of Centrais Elétricas Brasileiras S.A. (ELETROBRAS), within the scope of the National Privatization Program (PND).
We highlight the main measures of the Resolution:
- The privatization will be carried out through a global public offering (“Global Public Offering”) which will comprise the primary public distribution (“Primary Offering”) of common shares simultaneously in Brazil (“Brazilian Public Offering”) and abroad (“International Offer”), and which shall comply with the standards set by the Brazilian Securities and Exchange Commission (CVM);
- The Primary Offering shall consist of common shares issued in an amount representing a financial volume equivalent to BRL 23,218,488,754.73;
- The National Bank for Economic and Social Development (BNDES), as Manager of the National Privatization Fund (FND), will represent the federal government in the Global Public Offering to issue and execute the Global Public Offering Documents, adhere to the contracting of the Coordinators and enter into the stabilization contract and stock loan agreement with a stabilizing agent;
- Adjustments and conditions for privatization were approved, in addition to those already provided for in Law No. 14,182/2021, such as contributions made by Eletrobras in the amount of BRL 1,417,464,016.00 through new advances for future capital increase between October 2021 and January 2022 for subsequent payment of capital, modification of the rights of the preferred shares of Eletronuclear, extinguishing the right to cumulative minimum dividends and giving priority in the repayment of capital, among others.
In addition, it should be mentioned that, on October 22, 2021, Eletrobras published a Notice to the Market, informing that the Company is currently in the selection phase of the syndicate of banks that will be responsible for structuring the follow-on operation and distributing the volume of shares to be issued by the Company. This measure complies with Article 1 of CPPI Resolution No. 176/2021, which allocated duties and responsibilites to Eletrobras, necessary for its privatization process.
Read in full – CPPI Resolution No. 203/2021
See in full – Notice to the ELETROBRAS Market
CNPE approves guidelines on cybersecurity in the electricity sector
On October 20, 2021, the National Energy Policy Council (“CNPE”) approved the Guidelines on Cyber Security in the Electricity Sector.
As informed by the CNPE, the proposal considers aspects of prevention, processing, response, and resilience of the electricity sector, as well as guidelines centered on processes, training of people and on technologies focused on cybersecurity, including the established in CNPE Resolution No. 01/2021.
The group created to analyze the subject based their findings on studies by several industry experts, having concluded that “cybersecurity” largely lacks attention from institutions, companies and agents, and that a secure cyber environment allows operational gains through technologies that enable remote operation and data collection, resulting in reduced maintenance costs, from the premise that the electricity sector evaluates cybersecurity as a lasting investment.
It was also highlighted that those new technologies enabled by cyberspace led to better quality indices of the services provided by power generation, transmission and distribution companies to the market.
MME establishes complementary conditions for granting a new Concession Agreement regarding the Hydroelectric Power Plants complex of CEEE-G
On October 20, 2021, the MME published Ordinance No. 559/GM/MME/2021, which establishes complementary conditions to the granting of a new Concession Agreement regarding the Hydroelectric Power Plants (UHEs) complex of the State Generation Company (CEEE-G).
As presented in the Ordinance, the concession will take place through a competitive bidding process, granted by ANEEL, with a period of 30 (thirty) years from the date of signing of the new contract, under the Independent Power Producers regime, pursuant to article 1, § 2, item IV, of Decree No. 9.271, 2018, with availability of energy to the utility company occurring from July 1, 2022. In turn, the Itaúba UHE will have energy available from the signing of the new Concession Agreement.
The amounts of energy resulting from the reduction of the amount contracted by the distribution agents shall be treated as a replacement, in accordance with the terms set forth in Article 24, § 1, item II, of Decree No. 5,163, of July 30, 2004, as of July 1, 2022.
MME publishes systematic for the Reserve Capacity Auction 2021
On October 21, 2021, the Ministry of Mines and Energy (“MME”) published Ordinance 29/GM/MME/2021, which establishes the Systematic (an outline of the procedural processes involved) to be applied in the Auction for The Contracting Electric Power and Associated Energy, from new and existing power generation projects that add electrical power to the National Interconnected System (SIN). The Auction is called ” Reserve Capacity Auction, 2021″ provided for in Normative Ordinance No. 20/GM/MME of August 16, 2021.
We highlight below some aspects of the Systematic.
The Auction will observe the following systematics, according to its products:
- Energy Product: will consist of one (i) Initial Stage, where the bidders who have associated energy may submit a single bid, corresponding to each project, with lot quantity and bid price, subject to an initial product ceiling price, resulting in an ascending order of projects classified according to bid price, considering the remaining capacity for generation flow; and one (ii) Continuous Stage, the period in which the bidders classified in the initial stage, considering the remaining capacity for generation flow, may submit bids for the product under negotiation;
- Power Product: will be composed of one (i) Initial Stage, the period in which the bidders may submit a single bid, corresponding to each project, with bid price referring to the availability of power. The bid price must be equal to or less than the initial price of the product, resulting in an ascending order of projects classified according to bid price, considering the remaining capacity for generation flow; one (ii) Continuous Stage, a period in which bidders classified in the initial stage, considering the remaining capacity for generation flow, may submit bids for the product under negotiation; and (iii) Ratification Stage of bids for the power product, in which the bidder of the project that fulfills the quantity demanded of the power product can ratify the availability of power offered.
The Auction is scheduled to take place on December 21, 2021.
CNPE approves guidelines for pricing of Angra 3
On October 22, 2021, the National Energy Policy Council (“CNPE”) Resolution No. 23/2021 was published, establishing guidelines for the definition of the energy price of the Angra 3 nuclear power plant.
This rule stems from the provision of Law No. 14,120/2021, which, aiming to increase the value of the country’s nuclear energy sources, to preserve the national interest and to observe the provisions of item XXIII of the caput section of article 21 of the Federal Constitution, conferred the competence to CNPE to grant authorization for the operation of the Angra 3 nuclear power plant.
We highlight the following aspects of the Resolution:
- The price of electricity produced by the Angra 3 Nuclear Thermal Power Plant will be established as a result of studies by the National Bank for Economic and Social Development (BNDES), and will consider the economic and financial viability of the project within the term established of the power plant’s Energy Trading Contract, as well as its financial feasibility under market conditions;
- In order to preserve the economic and financial balance of the Contract, an extraordinary revision of the electricity’s price to be approved by ANEEL may be carried out;
- The cost reductions resulting from the existence of competition in contracting suppliers to complete the project should be incorporated in order to reduce the price of electricity produced by the Angra 3 Nuclear Thermal Power Plant.
ANEEL holds Workshop on Transmission Auction No. 02/2021
On October 22, 2021, ANEEL held the Workshop to Clarify Aspects of the Transmission Auction No. 02/2021, scheduled for December 17, 2021. The event was broadcast via Youtube and addressed technical questions posed by interested parties regarding rules, conditions and requirements provided for in the Notice, draft contracts, and other annexes.
Currently, the bidding documents are under review by the Federal Audit Court . However, according to the schedule indicated in the draft notice, it is estimated that the notice for bidding will be published on November 11, 2021.
|TAKING OF CONTRIBUTIONS (ANEEL)||SUBJECT||CONTRIBUTION DEADLINE|
|No 15/2021||More in-depth study of an analysis already carried out, involving the collection of information on the Evaluation of the Regulatory Result of the Minimum Maintenance Requirements of the transmission facilities of the Basic Network.||Until October 19, 2021|
|No 14/2021||Proposal to amend Submodules 2.4, 2.12 and 6.5 of the Network Procedures, in the light of the provisions of Normative Resolution No. 927/2021, which deals with procedures and criteria for the calculation and payment of operating restriction due to constrained-off events of wind power plants.||Until November 4, 2021|
|PUBLIC FORUMS (ANEEL)||SUBJECT||SESSION|
|No 28/2021||Obtain information to draft a Normative Resolution that will deal with the consolidation of normative acts related to the thematic relevance of “Cooperatives of Rural Electrification”, indicated in activity 14 of the Regulatory Agenda of ANEEL 2021-2022.
|On October 29, 2021|
|PUBLIC CONSULTATIONS (ANEEL)||SUBJECT||CONTRIBUTION DEADLINE|
|No 030/2020||Phase 2 – Regulatory Impact Analysis (AIR) that deals with the evaluation and improvement of regulations associated with reinforcements and improvements in electricity transmission facilities.||Until November 29, 2021|
|No 69/2020||Phase 2 – Obtain information for the reassessment of submodules 2.7 and 2.7A of the tariff regulation procedures (PRORET), referring to the sharing of “other revenues” in the segment of electricity distribution.||Until November 22, 2021|
|No 59/2021||Proposal of regulation with performance indicators and targets to be applied in the Organizational Performance program of the National Electric System Operator (“ONS”) for the 2022 and 2023 calculation cycle.||Until November 5, 2021|
|No 60/2021||Consolidation of rules on Tariff Regulation Procedures.||Until November 12, 2021|
|No 61/2021||Proposal of regulation for contracting of Reserve Capacity, in the form of power, in accordance with Decree 10,707/2021.||Until November 12, 2021|
|No 62/2021||Review of Submodules 2.15 and 2.16 of network procedures on requirements of ancillary services of operation centers and telecommunications for distributors and consumers.||Until November 12, 2021|
|No 64/2021||Obtain information for the definition of the methodology for calculating the X Factor and the gain of business efficiency for the segment of electricity transmission.||Until November 22, 2021|
|No 65/2021||Obtain information for the improvement of the proposed regulation inLaw No. 14,203/2021, which makes it mandatory to update the registration of beneficiaries of the Social Tariff of Electric Energy (TSEE).||Until November 12, 2021|
|TAKING OF CONTRIBUTIONS (ANEEL)||SUBJECT||CONTRIBUTION DEADLINE|
|No 116/2021||Electric Power Transmission Concession Plan (POTEE) 2021 – Expansions and Reinforcements – Basic Network and Other Transmission Facilities (1st Issuance)||Until November 3, 2021|
|No 117/2021||Regulatory Impact Study on the Air Conditioner Targets Program.||Until November 15, 2021|
|December 3, 2021 – Existing Energy Auctions A-1 and A-2 of 2021
Biomass, domestic coal, process gas, natural gas and other thermoelectric source projects
Notice: ANEEL (to be published)
More information here
|December 17, 2021 – Transmission Auction No. 02/2021
Concession of the public transmission service, according to the lowest Allowed Annual Revenue proposal, composed of 5 lots covering the states of Paraná, São Paulo, Bahia, Minas Gerais and Amapá.
More information here
|December 21, 2021 – Reserve Capacity Auction, 2021
Thermoelectric source projects
Notice: ANEEL (to be published)
More information here
This material is for informational purposes only, and should not be used for decision-making purposes. Specific legal advice may be provided by one of our lawyers.