Decree No. 6265, November 22 2007

Original Language Title: Decreto nº 6.265, de 22 de Novembro de 2007

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DECREE NO 6,265, DE November 22, 2007.

Altera and add devices to the Decree on 4,550, December 27, 2002, which regulates the commercialization of electric power generated by the Electrobrás Thermonuclear S/A-ELETRONUCLEAR, by ITAIPU Binacional.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution conferring you the art. 84, incisos IV and VI, paragraph "a", of the Constitution, and in view of the provisions of the art. 4th of Law No 5,899 of July 5, 1973 in the arts. 19 a to 21 of the Act No. 10,438 of April 26, 2002, and in Law No 11,480 of May 30, 2007,

DECRETA:

Art. 1st The arts. 2nd, 12, 13, 14, 15, 16 and 17 of Decree No 4,550 of December 27, 2002, pass vigorously with the following essay:

" Art. 2nd ..................................................................................

...............................................................................................

VI-Differential: ascertained value annually arising from the reduction in revenue of ELECTROBRÁS and the National Treasury occurring in function of the withdrawal of the annual factor of the US inflation readjustment index, incident on the financing contracts concluded between ELECTROBRÁS and ITAIPU, and corresponding assignment of credits to the National Treasury, to be recognized as a regulatory asset and recovered through its application in the ITAIPU pass fee, pursuant to the Act no 11,480 of May 30, 2007 ; and

VII-Regulatory Asset: value due to ELECTROBRÁS, defined annually by means of interministerial portry of the State Ministers of the Farm and Mines and Energy, stemming from the part of the differential mentioned in the inciso VI of this article, not incident in the tariff to be processed in the exercise following recognition, and which accumulates correction and remuneration of the plots of the non-incident differential in the tariff of previous years. " (NR)

" Art. 12. ANEEL will annually establish the repass fare to be practiced by ELECTROBRÁS in the commercialization of electric power from ITAIPU.

§ 1st The tariff referred to in the caput will have as base:

I-the unitary cost of electricity service of ITAIPU disciplined in the Annex "C" of the ITAIPU Treaty ;

II-the cost of remuneration per energy ceded by Paraguay ;

III-the share of the differential referred to in the inciso VI of the art. 2nd, which will be set annually by means of interministerial portry of the State Ministers of the Finance and Mines and Energy, stemming from the withdrawal of the annual readjustment factor that it treats art. 6th of Law No 11,480 of 2007 ; and

IV-the balance of the account Marketing of the Electrical Energy of ITAIPU, the one referred to art. 20, assured of the rebirth to ELECTROBRÁS of the costs incurred by it.

§ 2nd concessionaires should collect à ELECTROBRÁS, for credit of the ITAIPU Electrical Power Commercialization account, the value resulting from the multiplication of the monthly quota of the power to which the art refers. 11 for the repass fare of which treats the caput of this article.

§ 3rd The value resulting from the said operation in § 2nd should be billed by ELECTROBRÁS with the following maturities:

I-first invoice: up to day 10 of the second month following that of the period of operation considered ;

II-second invoice: up to day 20 of the second month following that of the period of operation considered ; and

III-third invoice: up to day 30 of the second month following that of the period of operation considered, the maturity of this instalment relative to the billing of the month of December will give up until the last day of the month of February.

§ 4th US dollar invoices of the America will be paid in reais, at the conversion rate corresponding to the average rate of sale calculated by the Central Bank of Brazil, on the business day immediately prior to the invoice payment, and available in SISBACEN Transaction PTAX800, option 5, Quotes for Accounting, or another that will come to be fixed by the Brazilian monetary authorities.

§ 5th The concessionaire who, in the terms of this article, do not make the settlement of the monthly instalment that it treats § 3rd, shall be subject to the provisions of the art. 10 of Law No 8,631 of March 4, 1993. " (NR)

" Art. 13. For the purposes of application of the Energy Marketing rules and procedures, the ITAIPU plant will be considered a participant of the Ministry of Foreign Affairs and ELECTROBRÁS, as ITAIPU Power Marketer, will be the holder of the actual accounts in the Commercialization Chamber of Electrical Electrical Energy-CCEE arising from the Ministry of Foreign Affairs

.......................................................................................... " (NR)

" Art. 14. The secondary energy arising from the allocation made by the Ministry of Foreign Affairs to ITAIPU will be accounted for in the CCEE in favour of ELECTROBRÁS, obeyed the rules and marketing procedures approved by ANEEL.

Single Paragraph. The ELECTROBRÁS will shoulder the costs of royalties, compensation for administration and supervision charges and remuneration for power cession arising from the secondary energy allocated to ITAIPU's Usina. " (NR)

" Art. 15. .................... ??????????.

I- ............................. ????????? .................

a) arising from the payments of the distributor to ELECTROBRÁS from the re-pass of the contracted power of ITAIPU ;

.......................................................................................................

c) of secondary energy marketing allocated to ITAIPU in CCEE ;

II- ..........................................................................................

a) with payments made by ELECTROBRÁS corresponding to the acquisition of ITAIPU electricity services ;

.......................................................................................................

c) with power purchases in CCEE to cover possible exposures of ELECTROBRÁS arising from the annual energy delivery commitments linked to the contracted power ;

.......................................................................................................

e) referring to compensation to ELECTROBRÁS and the National Treasury of the withdrawal of the annual debt readjustment factor of ITAIPU constant of interministerial portry and defined in § 1st of the art. 6th of the Act No. 11,480, 2007.

.......................................................................................................

§ 4º The result of the account that treats the caput will be ascertained, annually, by ELECTROBRÁS, and the ascertainment of the result of the year of competence shall be completed by April 20 of the following year.

............................................................................................. " (NR)

" Art. 16. .......................................................................................

.......................................................................................................

Single Paragraph. For the purposes of incorporation of the account balance in the calculation of the power repass fare, ANEEL may use estimation, drawn up on the basis of partial balance found on October 31 of each year, without further adjustment. " (NR)

" Art. 17. The ELECTROBRÁS is expected to inform ANEEL, by April 25 of each year, the result of the ITAIPU Electrical Power Commercialization account of the previous year. " (NR)

Art. 2nd Chapter II of Title III of the Decree No 4,550, 2002, passes in addition of the following articles:

" Art. 12-A. The differential referred to in the inciso VI of the art. 2nd will be ascertained at the closing of each financial year by ELECTROBRÁS and included in the repass tariff to the electric power dealers of ITAIPU's contracted power, in the years subsequent to the signing of the contractual instruments contemplating the effectivation of the negotiations of which they treat the arts. 1st and 2nd of Law No 11,480, 2007.

§ 1st instalment of the differential to be included in the repass fare, each year, will be obtained by the positive difference between the annual financial flows arising from the application of the original conditions set out in the contracts for financing entered into between ELECTROBRÁS and ITAIPU and those obtained from its additives, concluded in accordance with the arts. 1st and 2nd of Law No 11,480, 2007.

§ 2nd For calculation of the parcel referred to in § 1st, in case the definitive indices are not yet known at the time of the establishment of the pass fee, the indices and values adopted by ITAIPU for the determination of their annual budget will be used.

§ 3rd instalment as referred to in § 1st will constitute credit of ELECTROBRÁS and the National Treasury and will be distributed proportionally between both, so as to maintain, at the very least, ninety and four percent of the flow of National Treasury receipts arising from the application of the annual factor of readjustment, originally anticipated in the contracts for the assignment of credits between ELECTROBRÁS and UNION, as laid out in the single paragraph of the art. 2nd of Law No 11,480, 2007.

§ 4th Eventual balance of the regulatory asset remaining after discharge of the financing contracts that gave rise to it, stemming from the use of provisional indices and values, will be fully amortised by its inclusion in the repass tariff of the immediately subsequent financial year.

§ 5th The methodology for the calculation of the plot referred to in § 1st, the differential and the regulatory asset, defined, respectively, in the incisos VI and VII of the art. 2nd will be established in specific interministerial portry of the State Ministers of the Farm and Mines and Energy.

§ 6th The values of the parcel referred to in § 1st, of the differential and the realization of the regulatory asset, defined, respectively, in the incisos VI and VII of the art. 2nd will be established in the specific interministerial portion of the State Ministers of the Farm and Mines and Energy and published by November 10 each year.

§ § 7th Extraordinarily, the deadline referred to in the § 6th does not apply to the values that will be defined in specific interministerial portal, to be published in the financial year 2007.

§ 8th Case the difference mentioned in § 1st negative, the share of the differential to be included in the repass fare will correspond to zero.

Art. 12-B. The regulatory asset will correspond to the difference between the variation in debtor balances and the variation in annual financial flows obtained with the application of the original conditions set out in the contracts ELECTROBRÁS and ITAIPU and those obtained from their additives, concluded according to the arts. 1st and 2nd of Law No 11,480, 2007.

Art. 12-C. It is assured to ELECTROBRÁS, annually, recognition of credit arising from the regulatory asset.

Art. 12-D. It is ensured to ELECTROBRÁS the realization of the regulatory asset upon inclusion in the ITAIPU pass fee, regardless of the duration of the financing contracts concluded between ELECTROBRÁS and ITAIPU, and corresponding assignment of credits to the National Treasury.

Art. 12-E. For the purpose of accounting registration, the credits recognized to ELECTROBRÁS pursuant to this Decree, as a regulatory asset, will be updated, annually, observed the accounting regime of the competence, based on the average sales rate calculated by the Bank Central Brazil, on the business day immediately prior to the end of the financial year, and available in SISBACEN Transaction PTAX800, option 5, Cotations for Accounting, or other that will be fixed by the Brazilian monetary authorities. " (NR)

Art. 3rd Chapter III of Title III of the Decree No 4,550, 2002, passes hereafter " Do Ministry of Foreign Affairs and Relationship with the CCEE ".

Art. 4th This Decree goes into effect on the date of its publication.

Brasilia, November 22, 2007 ; 186th of the Independence and 119th of the Republic.

LUIZ INACIO LULA DA SILVA

Guido Mantega

Nelson Jose Hubner Moreira

This text does not replace the published in the DOU of 11/23/2007

REPUBLICATION

DECREE No-6,265, DE November 22, 2007 (*)

Altera and add devices to the Decree on 4,550, December 27, 2002, which regulates the commercialization of electric power generated by the Electrobrás Thermonuclear S/A-ELETRONUCLEAR, by ITAIPU Binacional.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution that confers you the art. 84, incisos IV and VI, paragraph "a", of the Constitution, and in view of the provisions of the art. 4th of Law No 5,899 of July 5, 1973 in the arts. 19 a to 21 of the Act No. 10,438 of April 26, 2002, and in Law No 11,480 of May 30, 2007,

D E C R E T A:

Art. 1st The arts. 2nd, 12, 13, 14, 15, 16 and 17 of Decree No 4,550 of December 27, 2002, pass vigorously with the following essay:

" Art. 2nd .....................................................................................

...........................................................................................................

VI-Differential: ascertained value annually arising from the reduction in revenue of ELECTROBRÁS and the National Treasury occurring in function of the withdrawal of the annual factor of the US inflation readjustment index, incident on the financing contracts concluded between ELECTROBRÁS and ITAIPU, and corresponding assignment of credits to the National Treasury, to be recognized as a regulatory asset and recovered by means of its application in the ITAIPU pass fee, pursuant to the Law No 11,480 of May 30, 2007 ; and VII-Regulatory Asset: value due to ELECTROBRÁS, defined annually by means of interministerial portry of the State Ministers of the Farm and Mines and Energy, stemming from the part of the differential mentioned in the inciso VI of this article, not incident in the tariff to be processed in the exercise following that of the recognition, and which accumulates correction and remuneration of the plots of the non-incident differential in the tariff of previous (NR)

" Art. 12. ANEEL will annually establish the repass fare to be practiced by ELECTROBRÁS in the commercialization of electric power from ITAIPU.

§ 1st The tariff referred to in the caput will have as a base:

I-the unitary cost of electricity service of ITAIPU disciplined in the Annex "C" of the ITAIPU Treaty ;

II-the cost of remuneration per energy ceded by Paraguay ;

III-the share of the differential referred to in the inciso VI of the art. 2nd, which will be set annually by means of interministerial portry of the State Ministers of the Finance and Mines and Energy, stemming from the withdrawal of the annual readjustment factor that it treats art. 6th of Law No 11,480 of 2007 ; and

IV-the balance of the account Marketing of the Electrical Energy of ITAIPU, the one referred to art. 20, assured of the rebirth to ELECTROBRÁS of the costs incurred by it.

§ 2nd concessionaires should collect à ELECTROBRÁS, for credit of the ITAIPU Electrical Power Commercialization account, the value resulting from the multiplication of the monthly quota of the power to which the art refers. 11 for the repass fee that it treats the caput of this article.

§ 3rd The value resulting from the operation referred to in the § 2nd should be billed by ELECTROBRÁS with the following maturities:

I-first invoice: up to day 10 of the second month following that of the period of operation considered ;

II-second invoice: up to day 20 of the second month following that of the period of operation considered ; and

III-third invoice: up to day 30 of the second month following that of the period of operation considered, the maturity of this instalment relative to the billing of the month of December will give up until the last day of the month of February.

§ 4th US dollar invoices of the America will be paid in reais, at the conversion rate corresponding to the average rate of sale calculated by the Central Bank of Brazil, on the business day immediately prior to the invoice payment, and available in SISBACEN Transaction PTAX800, option 5, Quotes for Accounting, or another that will come to be fixed by the Brazilian monetary authorities.

§ 5th The concessionaire who, in the terms of this article, do not make the settlement of the monthly instalment that it treats § 3rd, shall be subject to the provisions of the art. 10 of Law No 8,631 of March 4, 1993. " (NR)

" Art. 13. For the purposes of application of the Energy Marketing rules and procedures, the ITAIPU plant will be considered to be a participant of MRE and ELECTROBRÁS, as ITAIPU Power Marketer, will be the holder of the effectual accounts in the Commercialization Chamber of Electrical Energy-CCEE arising from MRE.

............................................................................................... " (NR)

" Art. 14. The secondary energy arising from the allocation made by MRE to ITAIPU will be accounted for in the CCEE in favour of ELECTROBRÁS, obeyed the rules and marketing procedures approved by ANEEL.

Single Paragraph. The ELECTROBRÁS will shoulder the costs of royalties , compensation for administration and supervision charges and remuneration for power cession arising from the secondary energy allocated to the ITAIPU plant. " (NR)

" Art. 15. ...................................................................................

I- ..............................................................................................

a) arising from the payments of the distributor to ELECTROBRÁS from the re-pass of the contracted power of ITAIPU ;

...........................................................................................................

c) of secondary energy marketing allocated to ITAIPU in CCEE ;

II- ............................................................................................

a) with payments made by ELECTROBRÁS corresponding to the acquisition of ITAIPU electricity services ;

...........................................................................................................

c) with power purchases in CCEE to cover possible exposures of ELECTROBRÁS arising from the annual energy delivery commitments linked to the contracted power ;

...........................................................................................................

e) referring to compensation to ELECTROBRÁS and the National Treasure of the withdrawal of the annual debt readjustment factor of ITAIPU constant from interministerial portry and defined in § 1the of the art. 6th of the Act No. 11,480, 2007.

...........................................................................................................

§ 4th The result of the account that it treats the caput will be ascertained, annually, by ELECTROBRÁS, and the ascertainment of the result of the year of competence shall be completed by April 20 of the following year.

............................................................................................... " (NR)

" Art. 16. ...................................................................................

...........................................................................................................

Single Paragraph. For the purposes of incorporation of the account balance in the calculation of the power repass fare, ANEEL may use estimation, drawn up on the basis of partial balance found on October 31 of each year, without further adjustment. " (NR)

" Art. 17. The ELECTROBRÁS should inform ANEEL, by April 25 of each year, the result of the ITAIPU Commercialization account of the previous year's ITAIPU. " (NR)

Art. 2nd Chapter II of Title III of the Decree No 4,550, 2002, passes in addition of the following articles:

" Art. 12-A. The differential referred to in the inciso VI of the art. 2nd will be ascertained at the closing of each financial year by ELECTROBRÁS and included in the repass tariff to the electric power dealers of ITAIPU's contracted power, in the years subsequent to the signing of the contractual instruments contemplating the effectivation of the negotiations of which they treat the arts. 1st and 2nd of Law No 11,480, 2007.

§ 1st instalment of the differential to be included in the repass fare, each year, will be obtained by the positive difference between the annual financial flows arising from the application of the original conditions set out in the contracts of financing entered into between ELECTROBRÁS and ITAIPU and those obtained from its additives, concluded in accordance with the arts. 1st and 2nd of Law No 11,480, 2007.

§ 2nd For calculation of the parcel referred to in § 1st, in case the definitive indices are not yet known at the time of the establishment of the pass fee, the indices and values adopted by ITAIPU for the determination of their annual budget will be used.

§ 3rd instalment as referred to in § 1st will constitute credit of ELECTROBRÁS and the National Treasury and will be distributed proportionally between both, so as to maintain, at the very least, ninety and four percent of the flow of National Treasury receipts arising from the application of the annual factor of readjustment, originally anticipated in the contracts for the assignment of credits between ELECTROBRÁS and UNION, as laid out in the single paragraph of the art. 2nd of Law No 11,480, 2007.

§ 4th Eventual balance of the regulatory asset remaining after discharge of the financing contracts that gave rise to it, stemming from the use of provisional indices and values, will be fully amortised by its inclusion in the repass tariff of the immediately subsequent financial year.

§ 5th The methodology for the calculation of the plot referred to in § 1st, the differential and the regulatory asset, defined, respectively, in the incisos VI and VII of the art. 2nd will be established in specific interministerial portry of the State Ministers of the Farm and Mines and Energy.

§ 6th The values of the parcel referred to in § 1st, of the differential and the realization of the regulatory asset, defined, respectively, in the incisos VI and VII of the art. 2nd will be established in the specific interministerial portion of the State Ministers of the Farm and Mines and Energy and published by November 10 each year.

§ § 7th Extraordinarily, the deadline referred to in § 6th does not apply to the values that will be defined in specific interministerial portation, to be published in the 2007 financial year.

§ 8th Case the difference mentioned in § 1st negative, the share of the differential to be included in the repass fare will correspond to zero.

Art. 12-B. The regulatory asset will correspond to the difference between the variation in debtor balances and the variation in annual financial flows obtained with the application of the original conditions set out in the contracts ELECTROBRÁS and ITAIPU and those obtained from their additives, concluded according to the arts. 1st and 2nd of Law No 11,480, 2007.

Art. 12-C. It is assured to ELECTROBRÁS, annually, recognition of credit arising from the regulatory asset. Art. 12-D. It is ensured to ELECTROBRÁS the realization of the regulatory asset upon inclusion in the ITAIPU pass fee, regardless of the duration of the financing contracts concluded between ELECTROBRÁS and ITAIPU, and corresponding assignment of credits to the National Treasury.

Art. 12-E. For the purpose of accounting registration, the credits recognized to ELECTROBRÁS pursuant to this Decree, as a regulatory asset, will be updated, annually, observed the accounting regime of the competence, based on the average sales rate calculated by the Bank Central Brazil, on the business day immediately prior to the end of the financial year, and available in SISBACEN Transaction PTAX800, option 5, Cotations for Accounting, or other that will be fixed by the Brazilian monetary authorities. " (NR)

Art. 3rd Chapter III of Title III of the Decree No 4,550, 2002, passes hereafter " Do MRE and the Relationship with the CCEE ". Art. 4th This Decree goes into effect on the date of its publication.

Brasilia, November 22, 2007 ; 186th of the Independence and 119 o of the Republic.

LUIZ INACIO LULA DA SILVA

Guido Mantega

Nelson Jose Hubner Moreira

(*) Republican for having gone out with incorrection at DOU of 11/23/2007, Section 1.

Attachment (s)