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Provisional Measure No. 2,152-2, June 1, 2001

Original Language Title: Medida Provisória nº 2.152-2, de 1º de Junho de 2001

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PROVISIONAL MEASURE NO. 2.152?2, 1º JUNE OF 2001

Creates and installs the Board of Management of the Electrical Power Crisis, of the Council of Government, sets guidelines for programs of faced with the electric power crisis and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution that confers it on art. 62 of the Constitution, adopts the following Provisional Measure, with force of law:

CHAPTER I

OF THE MANAGEMENT CHAMBER OF THE ELECTRIC POWER CRISIS.

Art. 1º It becomes created and installed the Chamber of Management of the Electrical Power Crisis? GCE with the aim of proposing and implementing measures of an emergency nature arising from the current critical hydrological situation to compatibilize demand and supply of electric power, so as to avoid untimely or unforeseen disruptions of the electric power supply.

Art. 2º À GCE competes:

I? regulating and managing the Electrical Energy Consumption Reduction Program, noted the provisions of this Interim Measure;

II? establish and manage the Electrical Energy Emergency Strategic Program;

III? follow up and evaluate the macro and microeconomic consequences of the electric power crisis and the measures adopted for their confrontation;

IV? proposing measures to mitigate the negative impacts of the electric power crisis on the levels of growth, employment and income;

V? propose the recognition of public calamity situation;

VI? establish limits of use and supply of electrical energy;

VII? to establish compulsory measures of reducing consumption and suspension or interruption of the supply of electrical energy;

VIII? to propose the amendment of tributes and tariffs on goods and equipment that produce or consume energy;

IX? decide how much to the deployment of rationing and individual and collective suspension of electrical power supply;

X? define the organ or the entity responsible for the implantation and execution of the determined measures;

XI? articulate? if with the Powers of the Union and the remaining federates objecting to the implantation of electric power crisis confronting programs;

XII? impose restrictions on the use of water resources not intended for human consumption and which are essential to the operation of hydroelectric power plants;

XIII? to propose, noted the provisions of the Supplementary Act No. 101 of May 4, 2000, the adjustment of the investment limits of the federal state electric sector;

XIV? adopt other measures for the reduction of consumption and magnification of transmission and supply of electric power;

XV? establish negotiations with specific sectors of consumers for greater energy-saving consumption economy;

XVI? establish specific procedures for operation of the Electrical Energy Tactician Market? MAE in emergency situations; and

XVII? establish guidelines for the media actions of the bodies and entities of the energy sector, aiming at the appropriate disclosure of the programs of which it treats this Provisional Measure.

Single paragraph. The solicitations and determinations of the GCE to the organs and entities of the Federal Public Administration will be met in priority character, within the time limit by it pointed out.

Art. 3º GCE has the following composition:

I? Ministers of State:

a) Head of the Civil House of the Presidency of the Republic, who will chair it;

b) of Mines and Energy, which will be your deputy? president;

c) of Development, Industry and Foreign Trade;

d) da Fazenda;

e) of the Planning, Budget and Management;

f) of the Environment;

g) of Science and Technology;

h) Head of the Office of the Government Communication Office of the Presidency of the Republic; and

i) Head of the Office of Institutional Security of the Presidency of the Republic;

II? maximum leaders of the following entities:

a) National Electrical Energy Agency? ANEEL;

b) National Agency of Waters? ANA

c) National Bank of Economic and Social Development? BNDES; and

d) National Petroleum Agency? ANP;

III?Director?President of the National Operator of the Electrical System? ONS;

IV? Director?Brazilian General of Itaipu Binational; and

V? other members designated by the President of the Republic.

§ 1º Powers will be invited to attend the meetings of the technical GCE, personalities and. representatives of public and private bodies and entities.

§ 2º The legal advisor to GCE will be provided by Advocacy?General of the Union.

§ 3º The members referred to in the incisors I, points ("a" and "b", II, point "a", and III and IV of this article, shall devote full time to the work of the GCE, without prejudice to the exercise of the custodial assignments of the respective posts.

§ 4 ° The President of the Republic shall designate the members who will constitute the executive core of the GCE.

§ 5º The President of the GCE will be able to practise the acts provided for in the arts. 2 ° and 5º ad referendum of the House, ears the members of the executive core.

Art. 4º The measures for overcoming the energy crisis will be disciplined in short, medium, and long term programs that will follow the guidelines set out in this Interim Measure.

Art. 5º The Emergency Consumption Reduction Program of Electrical Power Consumption is aimed at compatibilizing energy demand with supply, so as to avoid disruptions untimely or unforeseen of the power supply.

§ 1º For execution of the Program referred to in the caput, it will compete to GCE inclusive:

I? establish load contingent plan, setting out the elements and the necessary measures for compulsory reduction of electric power demand;

II? optimize energy consumption, prioritizing strategic sectors;

III? deflagrate educational campaigns with a view to raising awareness of the population for the need for the reduction of energy consumption;

IV? stimulate the immediate replacement of technologically-overgrown apparatuses, equipment and facilities at their energy consumption levels;

V? fix special consumer pricing regimes according to their levels and consumption limits, as well as to propitiate the granting of bonuses by reduced consumption of electric energy;

VI? establish limits of use and supply of energy;

VII? stimulate self-production and independent production of energy;

VIII? establish other measures that contribute to achieving the objectives of the Program; and

IX? define specific conditions of marketing of electric energy between dealers, permissionaries and authorized, as well as between these and consumers, objecting to the broadening of the supply or reduction of consumption.

§ 2º GCE will be able to establish the territorial limits of application of the Program of which it treats the caput.

Art. 6º The Emergency Strategic Energy Program is aimed at increasing the supply of electric power to ensure full demand fulfillment, with reduced burden-contingent risks, preventing harm to the population, constraints on economic growth and its undesirable impacts on employment and income, and will understand medium-and long term that should:

I? ensuring the full implementation of the economic and financial regime of the public service concessions of electric power, in the form of the Laws #s 9,074, of July 7, 1995, 9,427, December 26, 1996, and 9,648, of May 27 of 1998;

II? expand the power supply;

III? diversifying the energy matrix, so as to reduce the dependence of the hydrological regime;

IV? foster research with views to the development of alternative sources of energy;

V? optimize the power distribution;

VI? maximize the productivity of the installed generating sources and complete the projects in deployment; and

VII? institute compulsory energy use rationalization programs.

Art. 7º GCE will be able to recognize emergency character for works, services and purchases necessary for the implementation of the emergency measures for the overcoming of the electric power crisis, including for the purposes of the provisions of the inciso IV of the art. 24 of Law No. 8,666 of June 21, 1993.

§ 1º They do not apply, in the hypotheses of this article, the maximum period of one hundred and eighty days for the completion of the works and services and the extension sealing established in the inciso IV of the art. 24 of Law No. 8,666, of 1993.

§ 2º It could be instituted systematic award of award or performance bonuses to contracted companies, by anticipation of the completion of works and services referred to in the caput.

Art. 8º The competent bodies, in the authorization or license processes of the endeavors necessary to the increment of the country's electric power supply, will meet the principle of speed.

§ 1º The endeavors referred to in the caput comprise, among others:

I? transmission lines of power;

II? gas pipelines and pipelines;

III? thermoelectric plants;

IV? hydroelectric power plants;

V? generation of electric power by alternative sources; and

VI? import of energy.

§ 2º Observed the provisions of the arts. 3º, inciso II, and 225 of the Constitution, the environmental licensing of the undertakings referred to in this article should be decided by the competent bodies, with all their formalities, included the analysis of the environmental impact report, when it is the case, within the time frame of:

I? three months, in the case of the inciso I do § 1º;

II? four months, in the cases of the incisos II, III and V of § 1º; and

III-six months, in the case of the inciso IV of § 1º.

§ 3º Until June 30, 2001, the National Council of the Environment? CONAMA will establish simplified licensing-specific procedures, with a maximum duration of sixty days of tramway, for the ventures, referred to in the caput, of small-sized environmental impact.

§ 4º The studies and opinions necessary for the authorization or licensing referred to in the caput may be carried out by physical or legal persons, of notorious specialty, contracted for this purpose, by the competent bodies.

Art. 9º The funding with resources of funds and programs, the post of the federal financial institutions will give priority to the actions understood in the framework of the programs of which they treat the arts. 5º and 6º of this Provisional Measure.

Single paragraph. The budgets of the funds and programs of which it treats the caput are to be reviewed for compliance with the provisions of this article.

Art. 10. The administrative support and means necessary for the implementation of the work of the GCE will be provided by the Civil House of the Presidency of the Republic.

Art. 11. The President of the GCE will be able to request, in an iruscible manner, without prejudice to the rights and advantages to which they make jus in the respective bodies and entities of origin, servants and public servants, of the Federal Public Administration, direct and indirect, to assist the proceedings of the House.

Art. 12. The GCE will be extinguished upon the act of the President of the Republic.

CHAPTER II

OF THE EMERGENCY REDUCTION PROGRAM

OF ELECTRICAL ENERGY CONSUMPTION

Art. 13. The Emergency Reduction Program of Electric Power Consumption comprises, without prejudice to the provisions of art. 5º, the special charging regimes, the limits of use and supply of electrical energy and the measures for reduction of their consumption described in this Chapter.

Single paragraph. For the purposes of this Chapter, it adopts? if the classification of consumers defined in art. 20 of the Resolution of the National Electrical Energy Agency? ANEEL # 456, of November 29, 2000.

Art. 14. Residential consumers are expected to observe electric power consumption target corresponding to:

I? one hundred percent of the average monthly consumption verified in the months of May, June and July 2000, for those whose average monthly consumption is less than or equal to 100 kWh; and

II? eighty percent of the average monthly consumption verified in the months of May, June and July 2000, for those whose average monthly consumption is above 100 kWh, guaranteed, in any case, the minimum monthly target of 100 kWh.

§ 1º In the impossibility of characterizing? if the average effective monthly consumption referred to in this article, lies the authorized dealership to use any period within the last twelve months, observing, where possible, an average of up to three months.

§ 2º Consumers who disfulfil the respective monthly target fixed in the form of the caput will be subject to suspension of the supply of electric power.

§ 3º The provisions of § 2º does not apply to consumers who, in the same period, submit monthly consumption of less than or equal to 100 kWh.

§ 4º The suspension of supply of electrical energy referred to in § 2º shall observe the following rules:

I? the target set in the form of GCE Resolution will be observed from the reading of consumption carried out in June 2001;

II? will be the consumer cautioned, in writing, when of the first failure of the target fixed in the form of the caput;

III ? repeated the failure to comply with the target, far? se?á, after forty-eight hours of the delivery of the account that characterize the failure of the target and contain the respective warning, the suspension of the supply of electric power, which will have the duration:

a) maximum of three days, when of the first suspension of supply; and

b) minimum of four days a maximum of six days, in the subsequent suspensions.

§ 5º The GCE will be able to establish a number of time limits and procedures from those provided for in § § 1º, 2º and 4º of this article.

Art. 15. They apply? if to residential consumers, as of June 4, 2001, the following fares:

I? for the share of the monthly consumption less than or equal to 200 kWh, the tariff set out in Resolution of the National Electrical Energy Agency? ANEEL;

II? for the share of the monthly consumption higher than 200 kWh and less than or equal to 500 kWh, the tariff set in ANEEL Resolution increased by fifty percent of the respective value;

III? for the share of monthly consumption exceeding 500 kWh, the tariff set out in ANEEL Resolution increased by two hundred percent of the respective value.

§ 1º To residential consumers whose monthly consumption is lower than the respective meta grant? se?á individual bonus (Bn) calculated as follows:

I? for monthly consumption equal to or less than 100 kWh, Bn=2 (Tn?Tc), where:

a) Tn corresponds to the value, calculated on the normal tariff, of the respective consumption target, excluded taxes, fees, and other burden or charges included in the account; and

b) Tc corresponds to the value duty of the effective consumption of the beneficiary, excluded taxes, fees and other burden or charges included in the account;

II? for monthly consumption higher than 100 kWh, Bn will be equal to the lowest value between that determined by the "c" of this inciso and the product of CR by V, being:

a) CR=s/S, where s is the difference between the target fixed in the form of the art. 14 and the effective monthly consumption of the beneficiary, and S is the aggregate value of these differences for all beneficiaries;

b) V equal to the sum of the values billed as a result of the application of the percentage of which they treat the incisos II and III of the caput of this article and intended for the payment of bonuses, deducted proceeds intended to pay the consumers ' bonuses of which treats the inciso I of this paragraph;

c) the maximum bonus value per kWh less than or equal to half the value of the bonus per kWh received by consumers that it treats the inciso I of this paragraph.

§ 2º The value of the bonus calculated in the form of § 1º will not exceed that of the respective monthly account of the beneficiary.

§ 3º GCE will be able to change the tariffs, levels and limits of consumption and the form of the calculation of the bonus of which it treats this article.

§ 4º The percentage increase of the tariffs to which they refer the incisos II and III of the caput will not apply to consumers who observe the respective consumption targets set in the form of the art. 14.

§ 5º Caberá to the distributor dealerships, second guidelines to be established by GCE, decide on the cases of residential consumers subject to exceptional situations.

Art. 16. Commercial, industrial, service sector consumers and other activities framed in the constant B group of the inciso XXIII of the art. 2º of the ANEEL Resolution No. 456, of 2000, are expected to observe electric power consumption target corresponding to eighty percent of the average monthly consumption verified in the months of May, June and July 2000.

§ 1º Case the consumption monthly is lower than the target set in the form of the caput, the balance in kWh, at the consumer's discretion, will be accumulated for eventual future use or the distributor will be able to acquire the lower than the target, through the mechanism of auctions in the form to be regulated by GCE.

§ 2º In case the monthly consumption is higher than the target set in the form of the caput, the share of the surplus monthly consumption will be acquired from the distributor dealers at the price practiced at the MAE or compensated with possible balance accumulated in the form of § 1º.

§ 3º Consumers who disfulfil the respective target fixed in the form of the caput will be subject to suspension of the supply of electric power, case unviable the compensation provided for in § 2º.

§ 4º The suspension of supply of electrical energy referred to in § 3º will have as a criterion of application of one day for each three percent exceeding of the target.

§ 5º The GCE will be able to change the criteria and parameters set out in this article on the grounds of possible modification of the hydrological situation or other relevant circumstances.

Art. 17. Commercial, industrial and service sector consumers and other activities framed in the group A constant of the inciso XXII of the art. 2º of the ANEEL Resolution No. 456, of 2000, are expected to observe consumption targets of electric energy corresponding to percentage between seventy-five and eighty-five percent of the average monthly consumption verified in the months of May, June and July 2000, in the form established by GCE, which will have inclusive of the special tariff and suspension regime hypotheses and interruption of the supply of electric power arising from the disfulfillment of the respective targets.

Art. 18. Rural consumers are expected to observe electric power consumption target corresponding to ninety per cent of the average monthly consumption verified in the months of May, June and July 2000.

§ 1º The consumers who unabiding the respective target fixed in the form of the caput will be subject to suspension of the supply of electric power.

§ 2º The suspension of supply of electrical energy referred to in § 1º will be applied the one-day criterion for every six percent outdated of the target.

Art. 19. For consumers not mentioned in the previous articles, GCE will set the respective targets for reduction of consumption or supply of electric power, up to the limit of thirty-five percent of the average monthly consumption verified in the months of May, June and July 2000, noted the provisions of § 4º of the art. 14.

Art. 20. The values billed in elapsed gives application of the percentage of which treat the incisors II and III of the caput of the art. 15, deducted, if incidents, the tributes and fees, will be intended for:

I? constitute provision of two percent of those values, for the coverage of the additional costs of the distributor dealerships with the implementation of the GCE resolutions;

II? remunerate the bonus provided for in § 1º of the art. 15.

§ 1º The dealerships will account for special account the debits or credits, the values set out in the caput as well as the costs arising from the implementation of the measures set out by the GCE, in the form to be defined by ANEEL.

§ 2º The balance of the special account will be compensated in full in the tariffs, in the form to be defined by ANEEL.

Art. 21. For non-residential consumers classified in group B, the suspension of the electric power supply will observe the following rules:

I? the target set in the form of GCE Resolution will be observed from the reading of consumption carried out in June 2001;

II? only after June 30, 2001, far? se?á the suspension of the supply of electrical power by failure to comply with the respective monthly consumption target.

Single paragraph. The GCE will be able to set deadlines and procedures for the implementation of the provisions of this article.

Art. 22. For consumers rated in group A whose contracted demand is greater than 2.5 MW, the suspension of the electric power supply will observe the following rules:

I? will be held reading of consumption on May 31, 2001, from which it will be observed, in the entirety of the respective month, the consumption target;

II? only after June 30, 2001, far? se?á the suspension of the supply of electric power by failure to comply with the respective monthly consumption target.

§ 1º The GCE will be able to set deadlines and procedures for the execution of the provisions in this article.

§ 2º In the reason of the current electric power crisis arising from critical hydrological situation, contracted demand contracts will be able, at the consumer's discretion, to be reviewed to accommodate the reduction required.

Art. 23. For consumers ranked in group A whose contracted demand is equal to or less than 2.5 MW, the suspension of the electric power supply will observe the following rules:

I? the target set in the form of GCE Resolution will be observed from the reading of consumption carried out in June 2001;

II? only after June 30, 2001, far? se?á the suspension of the supply of electrical power by failure to comply with the respective monthly consumption target.

Single paragraph. The GCE will be able to set deadlines and procedures for the implementation of the provisions of this article.

CHAPTER III

OF THE PROVISIONS GERAIS

Art. 24. The Union, in the capacity of the granting power, and ANEEL, as the regulatory agency of the electric power sector, shall be cited as passive litisconsorts in all the legal actions in which it is intended to hinder or prevent, on the grounds of application of this Provisional Measure and the execution of GCE standards and decisions, the suspension or interruption of the supply of electric power, the collection of tariffs or the acquisition of energy at the price practiced in the MAE.

Art. 25. To the relationships arising from this Provisional Measure between legal persons or non-residential consumers and dealerships apply? if the provisions of the Civil Code and the Code of Civil Procedure.

Art. 26. Do not apply to Laws nos 8,987, of February 13, 1995, and 9,427, of December 26, 1996, in which they conflict with this Provisional Measure and with the decisions of the GCE.

Art. 27. The Emergency Electrical Energy Consumption Reduction Program, as well as the remaining constant or authorized arrangements in this Interim Measure and in the GCE standards and decisions are considered emergency situations for the purposes set out in § 3º of the art. 6º of Law No. 8,987, of 1995.

Art. 28. In the eventual and future need for the recomposition of the economic balance-financial statement of concession contracts, duly proven in the form of the legislation, this far? se?á, observed the provisions of the art. 20, in the form of § 2º of the art. 9º­ of Law No. 8,987, of 1995, upon recognition of ANEEL, resonated the hypotheses of fortuitous cases, force majee and inherent risks of economic activity and the respective market.

Art. 29. They are convalidated the acts practiced on the basis of the Provisional Measure No. 2.148?1 of May 22, 2001.

Art. 30. This Interim Measure shall come into force on the date of its publication.

Art. 31. It is hereby revoked the Provisional Measure No. 2.148?1 of May 22, 2001.

Brasilia, 1º June 2001; 180º of Independence and 113º of the Republic.

FERNANDO HENRIQUE CARDOSO

Pedro Malan

Alcides Lopes Tápias

José Jorge

Martus Tavares

Jose Sarney Filho

Pedro Kin

Alberto Mendes Cardoso

Gilmar Ferreira Mendes

A. Andrea Matarazzo