Felipe advises clients on M&A transactions and projects in the petroleum, natural gas, biofuels and electric power industries. He specializes in transactional, contractual and regulatory work covering all segments of these industries. Felipe previously worked as a foreign lawyer at DLA Piper LLP in the United States and is a New York State Bar Association member, allowing him to practice in New York. He has been Chairman of the Petroleum, Natural Gas and Biofuels Commission of the Brazilian Bar Association’s Rio de Janeiro chapter (OAB/RJ) since 2019, and was recently reappointed to serve until 2024.
Bachelor of Laws – Pontifícia Universidade Católica do Rio de Janeiro (PUC-RJ)
Postgraduate degree in Corporate Law and Capital Markets – Fundação Getulio Vargas (FGV Direito-RJ)
Master of Laws (LL.M.) – University of Chicago, USA
Análise Advocacia – Transport and Logistics (2021)
Chambers Global – Oil & Gas (2015-2021)
Chambers Brazil (formerly Chambers Latin America) – Oil & Gas (2015-2021)
LACCA Approved – Corporate/M&A; Energy (2018-2021)
Leaders League – Oil & Gas: most voted Rising Star (2019-2021)
Latin Lawyer 250 – Corporate and M&A; Energy (2021)
The Legal 500 – Next generation partners – Energy and Natural Resources: Hydrocarbons (2015-2021)
Who’s Who Legal Brazil – Energy (2018-2020)
Who’s Who Legal Global – Energy (2019-2021)
Who’s Who Legal – Thought Leaders – Brazil (2020); Brazil – Energy (2021)
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ANP approves new rules for waterway transportation of oil, its by-products, natural gas and biofuels and ship-to-ship operations
The Brazilian National Agency of Petroleum, Natural Gas and Biofuels (“ANP”) published, on March 17, 2020, the ANP Resolution No. 811/2020, which revoked the ANP Ordinance No. 170/2002, altering the regulation of the activity of waterway transportation of petroleum, its by-products, natural gas and biofuels and regulating the transshipment operation between vessels (“ship-to-ship”) in Brazilian jurisdictional waters.
Please find below our comments on the main changes introduced by the new resolution, which will take effect on April 1, 2020.
The new resolution aimed at updating the regulations on the subject. In addition, it maintained the obligation that all bulk cargo transportation of petroleum, its by-products, natural gas and biofuels for cabotage, offshore supply, port support and inland navigation must be carried out by Brazilian shipping companies (“EBNs”), duly authorized by the ANP.
No changes were made to waterway transportation regulations regarding the import and export of the aforesaid products, which may be carried out by a foreign shipping company – in the case of imports – and must be carried out by a Brazilian company – in the case of exports.
In addition, the new resolution provides that concessionaires or contractors of petroleum and natural gas exploration and production activities that are not EBNs must execute a contract with a duly authorized EBN to carry out the waterway transportation of such products.
As for the request for authorization for transportation before the ANP, the new resolution expands and describes in more detail the list of documents to be presented, which includes corporate documents, environmental licenses and authorization to operate granted by ANTAQ. The deadline for the analysis by the ANP and the granting of the corresponding authorization was extended from 30 to 60 days.
Among the obligations of authorized EBNs, we highlight the following:
The EBN must operate only in duly authorized terminals, ports and points of location, which are by the ANP and other relevant bodies, when in national territory. The definition of “duly authorized points of location” now includes platforms, FPSOs and FSUs.
Each vessel must have a copy of the authorization granted by the ANP to perform the transportation activities covered by the resolution.
Pursuant to the new resolution, EBNs that already hold ANP authorization for bulk cargo transportation do not need to request a new authorization.
Regarding ship-to-ship transfer operations, the new resolution (ANP Resolution No. 811/2020) provides that the operations may occur under the following alternatives:
vessels that are moored or anchored in a sheltered area;
vessels in motion in an area where anchoring is not possible (ship to ship underway); or
hybrid transfers, in which the approach and mooring occur during movement and the transfer is done with one of the anchored vessels.
The performance of these transfers must be preceded by ANP’s specific authorization, except: (i) for vessels of any nature, when it involves supplying of ships (bunkering), and (ii) in oil transfer operations related to fixed or floating platforms, including drilling platforms, FPSOs, as well as other floating storage units (FSU) for produced oil.
It is worth noting that the authorization for ship-to-ship transfers introduced by the new resolution does not cover loading and unloading operations carried out at LNG terminals and inland and water terminals authorized by ANP, under the terms of the ANP Resolution No. 52/2015.
Regarding the authorization for waterway transportation and ship-to-ship transfer operations specifically related to biofuels, the relevant agent must be in compliance with its obligations before the Federal, State and Municipal tax authorities, as well as it must be able to demonstrate debt clearance before the ANP.
Companies that perform ship-to-ship transfer operations in Brazilian jurisdictional waters must request authorization to carry out such activity within 120 days, counted from the date on which the new resolution takes effect.
On February 14, 2020, the Energy and Basic Sanitation Regulatory Agency of the State of Rio de Janeiro (“AGENERSA“) published the Resolution No. 4068/2020, which redefines the guidelines of the gas sector and implements the opening of the natural gas market in the State of Rio de Janeiro (“Resolution“).
Among the main innovations brought by the Resolution, we highlight the following:
the advent of the free consumer figure regarding natural gas supply.
the redefinition of the minimum volume of gas consumption to 10,000 m³/day, for purposes of qualifying users as free agents (self-producer, self-importer and free consumer) in the State of Rio de Janeiro.
the possibility of constructing a dedicated pipeline by the consumer itself, when the supply cannot be met by the state distributor (Naturgy, in the case of Rio de Janeiro).
After 30 years from the beginning of the operation, the pipeline constructed by the free consumer must be mandatorily returned to the State.
The free agents must pay to the state distributor specific tariffs for the utilization of the distribution system (TUSD) correspondent to the margin of the distributor’s consumption segment, deducting the commercialization costs of the natural gas acquisition, regardless of the supplier. In case of free agents supplied by a dedicated gas pipeline, the TUSD must be calculated based on the investments made and/or on the pipeline’s operation and maintenance costs.
The captive consumers – those with a natural gas supply contract in force with Naturgy – who decide to migrate to the free market, must inform the distributor at least 12 months in advance.
Considering the increase of competition and the possibility of implementing new projects, AGENERSA estimates a decrease in fuel prices down to 16% in the final tariff.
During the first three years after the publication of the Resolution, the new rule will only apply to new free agents or expansions. All concession agreements currently in force will be continued without any changes.
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