{"id":12883,"date":"2023-06-28T00:04:06","date_gmt":"2023-06-28T03:04:06","guid":{"rendered":"https:\/\/cmalaw.com\/public-consultations-regulating-the-offshore-electric-energy-is-announced\/"},"modified":"2023-06-28T00:04:06","modified_gmt":"2023-06-28T03:04:06","slug":"public-consultations-regulating-the-offshore-electric-energy-is-announced","status":"publish","type":"contents","link":"https:\/\/cmalaw.com\/homolog\/contents\/public-consultations-regulating-the-offshore-electric-energy-is-announced\/","title":{"rendered":"Public Consultations regulating the offshore electric energy is announced"},"content":{"rendered":"

T<\/span>hrough<\/span> Ordinance<\/span>s GM\/<\/span>MME<\/span> No.<\/span> 685<\/span> and 686<\/span>, published <\/span>on September 9, 2022,<\/span> the Ministry of Mines and Energy (MME) <\/span>launched<\/span> the opening<\/span> of<\/span> Public Consultation <\/span>No. <\/span>134\/2022 and<\/span> 135\/2022<\/span>, <\/span>in order to discuss<\/span> (<\/span>i<\/span>) <\/span>a <\/span>draft <\/span>proposal of<\/span> Normative<\/span> Ordinance <\/span>which <\/span>regulates <\/span>the<\/span> offshore <\/span>power generation<\/span> activities <\/span>in Brazil<\/span>; and (ii<\/span>) <\/span>a draft <\/span>proposal <\/span>of Normative <\/span>Ordinance <\/span>which <\/span>creates<\/span> the <\/span>Unified<\/span> Portal for <\/span>Management <\/span>of the Use <\/span>of Offshore<\/span> Areas<\/span> for Power <\/span>Generation<\/span> (\u201cUnified Portal\u201d)<\/span>.<\/span> The <\/span>period for<\/span> contributions<\/span> ends in <\/span>30 days<\/span> (<\/span>October 11<\/span><\/span>th<\/span><\/span>, 2022<\/span>)<\/span>.<\/span><\/span>\u00a0<\/span><\/p>\n

Complementing the provisions of<\/span> Decree No. 10,946\/2022 (\u201cDecree\u201d)<\/span>, these proposals<\/span>\u00a0may become an important landmark<\/span> for new opportunities in the <\/span>Brazilian power generation market<\/span> industry<\/span>.<\/span> In conjunction<\/span>, these<\/span> regulatory frameworks <\/span>will <\/span>enable offshore wind energy research and generation projects in the physical spaces of the Union\u2019s inland waters, territorial sea, exclusive economic zone, and continental shelf of Brazil, referred <\/span>to <\/span>in the Decree as \u201cpri<\/span>s<\/span>ms\u201d.<\/span><\/span>\u00a0<\/span><\/p>\n

ANEEL\u2019s Jurisdiction<\/strong><\/p>\n

The <\/span>regulation proposal provided by <\/span>the Ordinance <\/span>No. 685\/2022<\/span> delegates to the National Electricity Regulatory Agency <\/span>(\u201c<\/span>ANEEL<\/span>\u201d)<\/span> the jurisdiction to<\/span> perform all <\/span>the<\/span> administrative acts and <\/span>to sign <\/span>the<\/span> onerous assignment<\/span> contract<\/span> for the use of the <\/span>maritime spaces<\/span>. <\/span><\/span>\u00a0<\/span><\/p>\n

A<\/span>NEEL<\/span> will be responsible for<\/span> the activities of<\/span> (<\/span>i<\/span>) analysing and conducting the requests for the independent assignment of use; (ii) promoting <\/span>a<\/span>uctions <\/span>for<\/span> the procedures of <\/span>independent and planned assignment<\/span> of use<\/span>; (iii) defining the forms of <\/span>ascertain<\/span>, payment, and penalties for the default of payment due to the Federal Government.\u00a0<\/span><\/span>\u00a0<\/span><\/p>\n

Additionally, in complement to the Decree, the regulation proposal provides that ANEEL shall create the Unified Portal through which interested parties will submit their requests and the documentation required to the institutions responsible for issuing the Prior Interference Declaration (\u201cDIP\u201d).<\/span>\u00a0<\/span><\/p>\n

The <\/span>aforementioned portal<\/span> is the object of Ordinance No. 686\/2022, which <\/span>submits a<\/span> regulation proposal for the creation<\/span> and management <\/span>of <\/span>the<\/span> <\/span>Unified<\/span> Portal <\/span>by ANEEL. <\/span><\/span><\/p>\n

The Contract for the Assignment of Use <\/strong><\/p>\n

The regulation proposal <\/span>Ordinance<\/span> No 685\/2022<\/span> draft establishes that the contract for the assignment of use must be provided by the tender notice and will serve as an instrument for the interested party to be able to apply for licenses and authorizations from public entities, aiming at the implementation of offshore power generation projects.<\/span><\/p>\n

The draft provides that a grace period of at most 4 years will be granted for the beginning of the payment to the Federal Government, and the tender notice must indicate the stages of the project for the granting of such grace period, limited to the beginning of the commissioning of the enterprise.\u00a0 Regarding the term of the contract, for both the regimes of independent production of energy and self-production, prior to the issuance of ANEEL\u2019s authorization, the term foreseen is 10 years. Once such authorization is issued, the term will be extended automatically.<\/p>\n

Administrative penalties will be applied without the right to indemnity and without prejudice to the execution of guarantees provided by the assignee, in the following hypotheses: (i) non-compliance with the terms of the assignment of use contract; (ii) use of the prism other than what the interested party has been authorized; (iii) studies of the offshore energy potential are not carried out or the project is not implemented within the timeframe stipulated in the assignment of use contract; and (iv) extinction of the grant for exploitation of the electric power generation.<\/p>\n

Planned Assignment of Use<\/strong><\/p>\n

The prisms offered in the planned assignment procedure will be identified and evaluated by the Brazilian Energy Research Company (“EPE”), at its own initiative or upon request of the MME, observing the requirements established in the Ordinance, such as, among others, the availability of the area, the competitiveness of the energy potential related to other energy sources, and the existence of an adequate port structure to serve the project.<\/p>\n

EPE may also hold a public call to identify interested parties in investing in the conduction of studies for the identification of prisms. Such studies will compose the EPE’s technical material and may be used as a subsidy by the MME in other stages of the planned procedure.<\/p>\n

The <\/span>regulation <\/span>proposal provided by <\/span>Ordinance<\/span> No.<\/span> 685<\/span>\/<\/span>2022<\/span>\u00a0<\/span> delegates<\/span> to EPE the competence to request the issuance of the DIP from each government agency <\/span>as of<\/span> the prisms offered in the planned <\/span>assignment <\/span>procedure. According to the result of the DIPs<\/span> and<\/span> the <\/span>opinions <\/span>of EPE and ANEEL, the MME will proceed with the definition of the prisms to be offered in the <\/span>a<\/span>uction.<\/span><\/span>\u00a0<\/span><\/p>\n

Independent Use Assignment<\/strong><\/p>\n

The requ<\/span>est <\/span>for the assignment of use of selected prisms by the interested agents must observe the requirements established in the <\/span>regulation <\/span>proposal<\/span>, such as, <\/span>e.g<\/span>.<\/span> the purpose of the assignment of use, <\/span>the <\/span>estimation of energy potential, planning of transmission grid infrastructure appropriate to meet the drainage of energy potential, and the minimum technical requirements for offshore power generation, based on available commercial technologies.<\/span><\/span>\u00a0<\/span><\/p>\n

At the time of the request the interested party must submit a guarantee in an amount to be established by ANEEL. The process of assignment of use in the independent assignment will begin with the positive opinion of availability of the prism by ANEEL to the interested party.<\/p>\n

ANEEL\u2019s positive opinion will only be granted if the conditions precedent established in the Ordinance are fulfilled, namely (i) verification of overlap between the requested area and prisms that have already been assigned or are in the process of assignment; and (ii) verification if the area has already been demanded or earmarked for another development, such as the planned assignment. Once ANEEL\u2019s opinion is granted, the interested party must request the DIP through ANEEL\u2019s aforementioned portal.<\/p>\n

Prior Interference Declaration<\/strong><\/p>\n

The DIP request must be accompanied by the following information:<\/p>\n