SPECIAL UPDATE. A New Power Market in Mexico. A Competitive Power Market. Wholesale Market Participants

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1 SPECIAL UPDATE A New Power Market in Mexico by Raquel Bierzwinsky, in New York and Mexico City, and David Jiménez and Javier Félix, in Mexico City Mexico has enacted secondary legislation that creates a competitive power market open to private investment in almost all areas. As part of a package of nine new laws covering the energy sector and amendments to 12 existing laws, a new electric industry law (Ley de la Industria Eléctrica) came into effect August 12, The new set of energy laws implements changes to the Mexican constitution that were made in December 2013 to open the power and oil and gas sectors in Mexico to private participation. (For earlier coverage of the constitutional reforms, see Mexico Opens its Energy Markets in the February 2014 Project Finance NewsWire starting at page 57, and for coverage of the electric industry law bill, see Mexico is Set to Open its Power Sector in the June 2014 Project Finance NewsWire starting at page 32.) A Competitive Power Market The new electric industry law allows the private sector to participate freely in the generation and sale of electricity, while maintaining the electricity grid under the operational control of a state-owned agency. It creates a new wholesale electricity market (Mercado Eléctrico Mayorista) to be operated by the Centro Nacional de Control de Energía or. is currently a unit within the Comisión Federal de Electricidad or CFE, but will become the independent system operator for the entire grid. The Ministry of Energy and the Comisión Reguladora de Energía, or CRE, will have regulatory and supervisory authority over the wholesale power market. The Ministry of Energy will be responsible for issuing the initial market rules, and the CRE will be responsible for issuing permits to participate in the wholesale market as a buyer or seller of electricity. The CRE will also be responsible for setting tariffs for transmission, distribution and basic retail services, setting general conditions for market participants, issuing forms of interconnection contracts, and managing clean energy certificates. It will also issue a form of contract that, the independent grid operator, will enter into with wholesale market participants. Operational control over the national grid (Sistema Eléctrico Nacional) and the transmission and distribution of electricity are considered strategic areas that will remain in the hands of the Mexican government through a state entity. However, the private sector will be able to participate in transmission and distribution of electricity through agreements and joint ventures with state-owned agencies. CFE will become a fully competitive entity as a productive state enterprise under the new law and will be permitted to participate, through separate subsidiaries, in the different market activities. CFE will continue to be the supplier of basic retail services to residential customers and small and mediumsized commercial customers under regulated tariffs. None of CFE s assets will be privatized. Wholesale Market Participants The new electric industry law prohibits any single company from participating in more than one of the following activities: generation, transmission, distribution, power marketing and supply of electricity or basic resources for the electric industry. However, a common parent can participate in all the activities as long as it does each through a separate subsidiary. Commercialization or marketing of electricity refers to buying and selling electricity and clean energy certificates. The law divides wholesale market participants into a number of categories: generators (Generadores), suppliers (Suministradores), power marketers (Comercializadores), customers with aggregate load points under three megawatts called basic service users (Usuarios Básicos), customers with aggregate load points over three megawatts called qualified users (Usuarios Calificados), transmission providers (Transportistas) and distributors (Distribuidores). Generators, suppliers and qualified users may become direct participants in the wholesale market by entering into the relevant agreement with and then providing a performance bond to. / continued page 2

2 continued from page 1 Each such party will have to inform of each power plant or load point it intends to use to tap into the grid. The CRE will establish rules for qualified users and suppliers of basic retail services and qualified services. The CFE will remain the principal electric utility in Mexico. Generators The new law puts generators into one of two categories: those authorized to generate electricity from power plants and agents for or resellers of electricity from such power plants. With the exception of exempt generators, all power plants Mexican Wholesale Electricity Market PRODUCT PROVIDER RETAILER Transmission CFE-Transmission Distribution CFE-Distribution Regulated Tariffs Basic Service Supplier Basic Service User Operational Control Transmission Rights Energy; Capacity; Related Services Generator Wholesale Electricity Markets Qualified Supplier Non-Registered Qualified User Registered Qualified User Exempt Generator Power Marketer Power Purchase and Hedge Agreements with capacities of at least 0.5 megawatts or power plants of any size represented in the wholesale market by an agent or reseller, will require permits from the CRE to be able to sell power into the market. Exempt generators are only allowed to sell energy through middlemen suppliers or use the electricity for self-consumption, meaning from an inside-the-fence project, or for export, in each case without interconnecting to the national grid or the general distribution networks. Generators with power plants that are used exclusively for private use during emergencies or service interruptions do not require a permit from the CRE. Generators are not permitted to sell electricity at retail or to transmit or distribute electricity for others. Generators will be permitted to sell power directly into the wholesale market through, to a qualified user or both. (The concept of a qualified user is discussed in more detail below.) Each generator participating in the wholesale electricity market will be able to set its price for electricity, but will have to report to, on a daily basis, its operating costs. will maintain a database of the operating costs of all generators and will be able to determine whether prices are being offered competitively. Generators and qualified users will be permitted to enter into private power purchase agreements (Contratos de Cobertura Eléctrica). will act as the go-between. It will ensure delivery of the electricity required by a qualified user, even if the electricity needed exceeds what the generator produces. will bill for any / continued page 3 2

3 continued from page 2 excess electricity at spot market prices. End Users End users with an aggregate consumption equal to or above three megawatts, as well as those who before the new law was enacted operated under the self-supply (autoabastecimiento), cogeneration and energy import schemes, are classified as qualified users and are permitted to purchase energy directly from or from a generator. The three-megawatt threshold is not a set threshold, but rather it is one that the Ministry of Energy will be able to modify from time to time. Three megawatts will be the threshold for the period through August 12, 2015, with the threshold dropping to a minimum of two megawatts after August 12, 2015 and to one megawatt a year later. End users with an aggregate consumption below the threshold may only buy electricity from retail service suppliers, including the CFE. End users may register with as qualified users for certain load points, while remaining basic service users for other load points. Power Marketing The electric industry law uses the term comercialización to refer to a wide range of power marketing activities. They include selling and trading electricity, clean energy certificates and financial transmission rights, entering into power purchase agreements and power hedges, buying transmission and distribution services, and representing generators in the wholesale market. Anyone planning to engage in power marketing must register with. Power marketers authorized to provide electricity supply services to end users and to represent generators in the wholesale market are called suppliers. All suppliers will require a permit from the CRE. The law provides for three types of suppliers: basic service suppliers, qualified service suppliers and emergency service suppliers. Suppliers enter into contracts to buy electricity from generators or from the grid and resell it to customers in the regions where the suppliers are authorized to operate. Basic service suppliers will only be permitted to sell power to basic service users under power purchase agreements. Only CFE, through retail subsidiaries, can provide these services. Qualified service suppliers will be able to sell electricity to qualified users and act for exempt generators in placing their electricity in the wholesale market. Emergency service suppliers may only provide emergency power services to qualified users, at the maximum regulated price and for a limited time period, to maintain continuity in the supply of electricity. They also may represent exempt generators in the wholesale market. Qualified users that are registered market participants will be permitted to do any marketing activity other than sell electricity to third parties. Power traders will be able to operate in the market. Transmission and Distribution Although the distribution and transmission of electricity will remain under the control of the state, the government will be authorized, through productive state enterprises (mainly, CFE subsidiaries), to enter into agreements or joint ventures with private parties to finance, install, maintain, manage, operate and expand the transmission and distribution networks. The CFE is expected to launch public international tenders for the construction and operation of transmission lines, with CFE acting as supervisor and remaining the middleman for dealing with, registered market participants and end users. The electric industry law imposes joint liability on private companies constructing or operating transmission lines, but only to the extent of the scope of the services provided. The tariffs for these services, as well as the terms of service, will be regulated by the CRE. The law establishes a local content requirement for anyone constructing or operating transmission and distribution lines, except where an international treaty or commercial agreement to which Mexico is a party provides otherwise. The local content requirement will be set by the Ministry of Energy, but it is not intended as a barrier to private investment. The law also bars any transmission and distribution infrastructure that belongs in the public domain from being granted as collateral security. The interconnection of power plants and load points with the grid will be regulated by. may direct transmission providers and distributors to interconnect to power plants requesting interconnection under terms that are not unduly discriminatory. The law provides for an open access obligation, subject to technical and security requirements. Transmission providers and distributors will be obligated to enter into interconnection / continued page 4 3

4 continued from page 3 agreements using forms issued by the CRE within 10 days after issuance of an order by and to perform the physical interconnection within 72 hours following an instruction from. Generators and end users can install interties, at their own expense, or may ask or the transmission providers and distributors to build such facilities as part of their network expansion and modernization plans or may contract with them for the construction services, at the generators and end users own expense. Grandfather Rights There has been a lot of attention lately in Mexico to grandfathering development-stage and operating projects. The electric industry law addresses the rights of permit holders under the old legal regime. Anyone who held a permit for self-supply, cogeneration, small production (meaning under 30 megawatts), independent power production (meaning at least 30 megawatts) and to import or export electricity will be able to retain the permit and continue operating under the old rules. However, a permit holder may choose to exchange its existing permit for a new generation permit under the new law, but with the option of going back to its old permit and interconnection agreement at any time in the next five years. The term of the existing permit and interconnection agreement will remain as originally granted. Grandfathered interconnection contracts (Contratos de Interconexión Legados) will retain the rights under the old rules relating to self-supplied capacity, a postage-stamp wheeling tariff, energy banking and renewable energy projects. The right of existing permit holders of renewable energy projects, in particular, to operate under old law was a very significant issue, as there was a great deal of concern and anxiety in the run up to the enactment of the new law about whether renewable energy projects would be hurt by the new wholesale market rules without any regulatory assistance, subsidies or incentives. Applications for self-supply, cogeneration, small producer, independent power producer and import and export permits that were pending on August 12, 2014 will be processed by the CRE in accordance with the old rules. Applicants that have paid the application fees and permit holders that have yet to execute an interconnection agreement may retain the right to enter into a 20-year grandfathered interconnection agreement for their projects. However, the permit holder must notify the CRE by October 11 that it plans to continue the project. Then it has until December 31, 2016 to arrange financing for the entire project and enter into commitments to acquire the equipment and pay at least 30% of the total project cost. Alternatively, a permit holder can lock in grandfather rights by being assigned transmission capacity through an open season process and satisfying all payment and bond requirements. Parties to a grandfathered interconnection agreement may register in the market all or a portion of the capacity included in their interconnection contracts and offtakers may register their load points in the qualified user registry. Any such registered capacity must be excluded from the grandfathered interconnection agreement and be included in a new interconnection agreement and generation permit under the new law, while offtaker load points registered in the qualified user registry must be excluded from the grandfathered interconnection agreement and be included in a new interconnection agreement under the new law. Financial Transmission Rights and Interruptible Load The Mexican wholesale electricity market incorporates elements from electricity markets in the United States, such as financial and congestion transmission rights and demand response or interruptible load. Financial transmission rights (Derechos Financieros de Transmisión) will be sold and traded among market participants. They will have the same tenor as the underlying interconnection agreement or useful life of the power plant, whichever is longer. Anyone that was a party to a grandfathered interconnection agreement or a transmission agreement on August 12, 2014 has the option, when entering into new interconnection agreements under the new regulations, to acquire, at no cost, firm financial transmission rights corresponding to the historic use of the load points included in the grandfathered interconnection agreement or transmission agreement. Turning to interruptible load (Demanda Controlable), end users, both basic and qualified, will be subject to requirements set by. Representatives of guaranteed interruptible load (Demanda Controlable Garantizada) will be required to register their capacity with. / continued page 5 4

5 continued from page 4 Renewable Energy and Distributed Generation The new law has no specific provisions for renewable energy projects, but it deals with them in a roundabout way by addressing clean energies, defined as any type of energy source and power generation process that does not exceed an emissions or residue threshold. The law does not differentiate among technologies, but lists among the clean energies wind, solar, tidal wave, geothermal, biomass, hydroelectric, nuclear, waste-to-energy and carbon sequestration. The Ministry of Energy will implement a mechanism for trading clean energy certificates to promote clean energy projects and diversify energy sources, with minimum percentage requirements that market participants must either sell or acquire, through public tenders or direct sales. The minimum number certificates that each market participant must buy will be tied to the total electricity consumption at load points. Minimum purchase requirements for clean energy certificates will be set the first quarter of each year for the following three-year period. Clean energy certificates will be issued by the CRE. Offtakers with load points covered by grandfathered interconnection contracts are exempted from the need to purchase clean energy certificates to the extent that they buy enough electricity from clean energy sources to cover their entire electricity needs. The existing accelerated depreciation benefit for renewable energy projects will remain in place. The law allows exempt generators with generating facilities interconnected to distribution networks serving a high number of load points to operate under a distributed generation scheme. Distributed generation will have open access to distribution networks and markets to sell its production. The Ministry of Energy is charged with promoting credit and other forms of financing for clean energy distributed generation facilities. Electricity customers will be able to engage in net metering with their retail suppliers. The CRE will issue a form of contract to be used and decide on the payment methodology. Other Information The law contains a number of provisions that regulate the social impact of power projects on local and indigenous communities. It requires that all parties interested in obtaining a permit or authorization to generate electricity must present the Ministry of Energy with a social impact assessment that not only describes the potential social impacts, but also offers mitigation measures. The Ministry of Energy is expected to issue the initial market rules and establish a wholesale electricity market within the next nine to 12 months. The CRE has nine months -- until early April to issue the model contracts to be used in the wholesale electricity market. Supplemental rules and regulations will need to be issued on the same timeline. will start functioning as an independent agency of the government by December The CFE will operate in the future under a new law that was enacted as part of the package of laws adopted alongside the electric industry law, The CFE will become productive state enterprise with technical, operational and administrative autonomy. It will perform all public service transmission and distribution activities, as well as power generation and power marketing services either directly or through subsidiaries. It may import, export, transport, store and market gas, coal and other fuels and, in the process, turn into a fully-integrated energy company. CFE may also form partnerships and strategic alliances to provide its services and will be able to develop projects with private sponsors under public-private partnerships. It will no longer be subject to ordinary government procurement rules, which will provide CFE with more flexibility and efficiency in contracting for works and services. Finally, the CFE will have budgetary autonomy, but subject to budget balancing and indebtedness limitations proposed by the Ministry of Finance and approved by the Mexican Congress. September