3. (hannyjberchmans)aspek-aspek legal yang diperlukan di dalam pengembangan pembangkit listrik...
TRANSCRIPT
Aspek-aspek legal dalam
Pengembangan Pembangkit Listrik
Energi Terbarukan
Dr. Hanny J. Berchmans
Desember, 2012
Outline
1. Tahapan didalam proses Pengembangan Proyek
Energi Terbarukan (PPET)
2. Feasibility Study and Detail Engineering Design
(DED) documents
3. Underlying Laws/Regulation
4. Licensing and Permits
Outline
1. Tahapan didalam proses Pengembangan Proyek
Energi Terbarukan (PPET)
2. Feasibility Study and Detail Engineering Design
(DED) documents
3. Underlying Laws/Regulation
4. Licensing and Permits
Tahapan didalam proses PPET
• Small-scale renewable energy Independent Power Project (IPP) may take 3 to 5
years from the project initiation to commercial operation date (COD), during
which Project Sponsor would have to identify project opportunity, conduct
feasibility study, enter into a Power Purchase Agreement (PPA) with PLN as the
traditional off-taker, seek financing commitment, and implement the construction
work.
Project
Initiation
Feasibility
Study PPA Financing Constructi
on
Max 1 Year Typically 2 Years 7-8 months 6-12months
O & M COD
PPA: 15 to 30 years
Tahap Perencanaan Tahap Konstruksi Tahap Operasional
IDENTIFY
PROJECT
APPLY OTHER
NECESARRY
PERMITS
SIGN PPA
ADDITIONAL
INFORMATION
NEGOTIATING
LOAN
CONSTRUCT
PLANT
COMMISION
OPERATE
ISSUED
INITIAL PERMIT
(IJIN PRINSIP)
ISSUED
ALL OTHERS
PERMITS
MOU
(Optional)
ISSUE
APPOINTMENT
LETTER
FINANCIAL
CLOSURE
LETERS OF
INTENTS
LOAN
AGREEMENT
SUBSEQUESNT
DRAW DONW
MONITOR &
RECEIVE
PAYMENTS
INITIAL
FUNDING
REVIEW
PROPOSAL
PE
MD
A
DE
VE
LO
PE
R
PL
N
LE
ND
ER
2 - 3 month 3 - 6 month 6 - 12 month 24 month 12 month
LAND
ACQUISITION
4 2
PURCHASE
POWER
APPLY
PERMITS
SUBMIT
PROPOSAL
FEASIBILITY
STUDY
1
REVIEW
PROPOSAL
# = Potential issues
3
5
7
1. Ijin Lokasi
2. Pemanfaatan Air
3. Forestry
4. SIPA
5. ..
6. Ijin Lokasi
7. Pemanfaatan Air
8. Iijin …
9. Ijin …
10. Ijin …
8
9
FEED IN
TARRIF
6
Critical Timeline
for successful
project
Proses PPET
Outline
1. Tahapan didalam proses Pengembangan Proyek
Energi Terbarukan (PPET)
2. Feasibility Study and Detail Engineering Design
(DED) documents
3. Underlying Laws/Regulation
4. Licensing and Permits
Feasibility Study
Detail Engineering Design
Outline
1. Tahapan didalam proses Pengembangan Proyek
Energi Terbarukan (PPET)
2. Feasibility Study and Detail Engineering Design
(DED) documents
3. Underlying Laws/Regulation
4. Licensing and Permits
Renewable energy projects has been receiving strong supports from the Government and state-owned utility
company PLN, with a clear target and planning criteria:
Presidential Regulation 5/2006 on National Energy Policy:
Ministry of Energy and Mineral Resources Vision 25/25: Set a more ambitious target, achieving renewable
energy utilization up to 25% of national energy mix, and using energy efficiency initiative, reduce energy
demand by 34% compared to the business-as-usual scenario
PLN power generation development policy: Development of renewable energy resources does not
necessarily adhere to the least-cost principle, while maintaining reserve margin criteria and readiness of
project development (since RUPTL 2009)
Fuel % of National Energy Mix
by 2025
Oil 20%
Gas 30%
Coal 33%
Geothermal 5%
Others (e.g. nuclear, hydro, biomass, wind, etc.) 12%
Underlying Laws/Regulations:
National Energy Mix Target
RE Pricing Regulation
MEMR Regulation 4/2012 on Feed-In Tariff for RE (Hydro, Wind, & PV)
PPA Price Regional Adjustment
Connection to Medium Voltage (20
kV T/L):
P = Rp 656/kWh x F
Java and Bali, F =1
Sumatera and Sulawesi, F = 1.2
Kalimantan, NTB, NTT, F = 1.3
Maluku and Papua, F = 1.5
Connection to Lower Voltage
(220/380 Volt Lines):
P = Rp 1,004/kWh x F
• The regulation allow for higher negotiated PPA price, but subject to approval from MEMR
• For excess power, contracted capacity can be larger than own use
• For geothermal power project, capped at US cent 9.7/kWh
RE Pricing Regulation
MEMR Regulation 4/2012 on Feed-In Tariff for RE (Biomass & Biogas)
Technology PPA Price Regional Adjustment
BIOMASS & BIOGAS Connection to Medium
Voltage (20 kV T/L):
P = Rp 975/kWh x F
Java, Madura, Bali, and Sumatera: F =1
Sulawesi, Kalimantan, NTB, NTT: F = 1.2
Maluku and Papua, F = 1.3
Connection to Lower
Voltage (220/380 Volt
Lines):
P = Rp 1,325/kWh x F
MSW – Zero Waste Connection to Medium Voltage (20 kV T/L):
P = Rp 1,050/kWh
Connection to Lower Voltage (220/380 Volt Lines):
P = Rp 1,398/kWh
MSW – Sanitary Landfill Connection to Medium Voltage (20 kV T/L):
P = Rp 850/kWh
Connection to Lower Voltage (220/380 Volt Lines):
P = Rp 1,198/kWh
RE Pricing Regulation
MEMR Regulation 4/2012 on Feed-In Tariff for RE (Biomass & Biogas)
Technology PPA Price Regional Adjustment
BIOMASS & BIOGAS Connection to Medium
Voltage (20 kV T/L):
P = Rp 975/kWh x F
Java, Madura, Bali, and Sumatera: F =1
Sulawesi, Kalimantan, NTB, NTT: F = 1.2
Maluku and Papua, F = 1.3
Connection to Lower
Voltage (220/380 Volt
Lines):
P = Rp 1,325/kWh x F
MSW – Zero Waste Connection to Medium Voltage (20 kV T/L):
P = Rp 1,050/kWh
Connection to Lower Voltage (220/380 Volt Lines):
P = Rp 1,398/kWh
MSW – Sanitary Landfill Connection to Medium Voltage (20 kV T/L):
P = Rp 850/kWh
Connection to Lower Voltage (220/380 Volt Lines):
P = Rp 1,198/kWh
Tax Incentives for RE
Projects
MOF Regulation 21/2010 and 24/2010
1. Reduction of taxable net income up to 30% of equity (over 6 years of 5% each)
2. Accelerated depreciation and amortization of 2 – 10 years at 2.5 – 5% rate, depending on
type of assets
3. Withholding tax on dividend capped at 10% for foreign equity investor (can be lower in case
of tax treaty)
4. Loss compensation of 5 – 10 years
5. Exemption of value-added tax (VAT) for capital goods (e.g. engine, equipment, etc. except
for spare-parts)
6. Exemption of importation tax for machines, equipment, and construction materials
Outline
1. Tahapan didalam proses Pengembangan Proyek
Energi Terbarukan (PPET)
2. Feasibility Study and Detail Engineering Design
(DED) documents
3. Underlying Laws/Regulation
4. Licensing and Permits
Licenses/Permits:
Corporate Licenses (1)
No Provision Key Issues
1 In case of foreign
shareholder - the Approval
Letter of Foreign Capital
Investment ("SP-PMA")
The first step in establishing of a Foreign Capital Investment (“PMA”) company (for the purpose of this memorandum
hereinafter referred to as “IPP”) begins with the foreign investor’s submission of an application addressed to the
Chairman of BKPM. BKPM will then issue an SP-PMA addressed to the applicant, with copies to the related Indonesian
Government agencies. Please note that BKPM usually requires a recommendation from the Department of Energy and
Mineral Resources for the establishment of a PMA company engaging in private power business.
2 Minister of Law and Human
Rights (“MOLHR”) approval
of the IPP’s deed of
establishment.
Once the SP-PMA has been obtained, a deed of establishment of the IPP must be executed in notarial deed form
before a notary public. Once executed, the notary public must submit the deed of establishment to MOLHR for approval
within 60 days after execution accompanied by supporting documents.
Upon completion of the submission, MOLHR shall immediately electronically declare his non-objection to such
application. Within 30 days after the statement of non-objection, the applicant (by its notary) is obligated to physically
deliver the application letter including its supporting documents. Within 14 days after receiving the complete physical
documents, MOLHR shall issue its approval of the deed of establishment. Upon receiving approval from MOLHR, the
IPP becomes a legal entity.
The company data will be administered by MOLHR in its Company Register.
3 Certificate of Domicile
(“SKDP”) issued by the
Head of Sub District in
which the IPP is domiciled.
The SKDP is required before the IPP can obtain Taxpayer Registration Number (“NPWP”) and must be obtained before
the IPP may open the account or submit the Articles to the MOLHR. The SKDP can be obtained from the office of the
head of the city or village in which the IPP will be domiciled once the IPP has established an office and obtained a letter
from the building manager stating that it resides in that building.
Licenses/Permits:
Corporate Licenses (2)
No Provision Key Issues
4 Registration of the Deed of
Establishment with the
Department of Trade
(“DOT”).
In addition to the Company Register administered by MOLHR, DOT also maintains a Company Register.
DOT registration will need to be submitted after obtaining MOLHR approval. A Company Registration Certificate ("TDP")
will be issued upon filing. The TDP is valid for five years. Law No. 3/82 provides criminal sanctions for a failure to
register of three months imprisonment or a fine of three million Rupiah). However, these sanctions have not, to our
knowledge, ever been imposed in practice. The first DOT registration would be handled by the notary who notarizes the
Articles.
5 Corporate Financial Year
Reports (Pendaftaran
Laporan Keuangan Tahunan
Perusahaan or “LKTP”)
The IPP shall file its audited financial statements to the DOT at the latest by six months after the financial year ended.
6 Report on Domestic and
Foreign Capital Investment
Activities (Laporan Kegiatan
Perusahaan Penanaman
Modal Dalam Negeri dan
Penanaman Modal Asing or
"LKPM") – in case of foreign
shareholder
If the IPP does not possess a Permanent Operating License (“IUT”), the LKPM must be submitted to the BKPM twice a
year, not later than July 31 of the relevant year for the period from January 1 through June 30 and not later than
January 31 of the following year for the period from July 1 through December 31.
If the IPP is already in commercial operation and has obtained an IUT, the LKPM must be filed annually, not later than
January 31 of the relevant year for the previous calendar year.
Licenses/Permits:
Tax and Electricity Business Licenses
No Provision Key Issues
7 NPWP The NPWP is a Taxpayer registration number.
8 Taxable Entrepreneur
Registration Number (a
PKP number)
The PKP is required for the IPP to become the Value Added Tax (“VAT”) collector. The PKP is a VAT registration
number.
VAT will be payable on any invoice issued for taxable goods and services rendered in Indonesia. VAT is imposed on
most goods and services at a rate of ten percent. VAT is generally collected by entities having PKPs. While some
goods and services are exempted from VAT by government regulation, the delivery of electricity by IPP to PLN is
subject to VAT.
9 Permit for Electric Power
Business for Public Interest
(Izin Usaha
Ketenagalistrikan Untuk
Kepentingan Umum or
commonly referred to as an
“IUKU”)
This license is required to enable the IPP to conduct the supply of electric power for public interest.
IUKU for electric power supply for inter-province or that is connected with the National Transmission Grid (Jaringan
Transmisi Nasional or “JTN”) shall be issued by the Minister of Energy and Mineral Resources (“MEMR”) through the
Director General of Electricity and Energy Development (“DGEED”). By contrast, IUKU for supply of electricity for
regional areas which is not connected with the JTN shall be issued by the relevant regent / municipal government and
IUKU for supply of electricity for inter-regent or inter-city which is not connected to JTN shall be issued by the relevant
governor.
Licenses/Permits:
Land and Building Licenses (1)
No Provision Key Issues
10 Location Permit for the
power plant
The location permit is a license granted to a company to acquire the land in accordance with the local and regional
land use planning requirements.The location permit is issued by the regent or the municipal government based upon
the recommendation of the local BPN supervising the area in which the electric power project is located. Once the
location permit is issued, the IPP can start its activities to acquire the land including certification of title. The validity
period of a location permit is based on the total area of land, varying from one year to three years and can only be
extended one time for one additional year. The procedures for obtaining location permit will be subject to local
regulations where the electric power project is located. A location permit is not required where the land needed to
implement a project is less than 10,000 square meters.
11 Right to Build (Hak Guna
Bangunan or “HGB”) or
Right to Use (“Hak Pakai”)
A HGB title grants the titleholder the right to use and develop the land. By having HGB title, the IPP can construct
buildings and use the land. A HGB title is granted for a maximum term of 30 years, extendable for another 20 years.
At the end of the 50-year period, the title could then be renewed for another 30 years subject to the limited discretion
of the Government. A Hak Pakai title also grants the titleholder the right to use and develop land. A Hak Pakai title
would allow a titleholder to construct and operate the Project over the land. Hak Pakai may be granted for a maximum
period of 25 years and can be extended for a maximum period of 20 years. Given he lesser term of Hak Pakai, an
IPP should obtain HGB title. The subject HGB title should be “over” State land which means that there would be no
other underlying title holder so that the IPP can apply to the local BPN office for the relevant extension or renewal
without requiring the consent of any underlying title holder.
Licenses/Permits:
Importation and Labor Licenses
No Provision Key Issues
19 Import Duty Exemptions
and
Master List Approval
PMA companies may be entitled to certain exemptions, reductions and deferrals of import duties and taxes for raw
materials and capital equipment goods identified on a BKPM-approved “Master List”. The Master List must be
prepared and submitted to BKPM for approval. The Master List describes the capital goods to be imported for the
construction/operation of its facility and for the importation of raw materials.
20 Importers Identification
Number (APIT)
In order to import the capital goods and raw materials identified on a Master List, the IPP needs to obtain an APIT,
which constitutes the license to import the same.
21 Employee Social Security
(Jaminan Sosial Tenaga
Kerja or “Jamsostek”)
Companies employing more than ten employees are obliged to register themselves and their employees as Jamsostek
participants.
22 Worker Safety Approval
from Director of the
Supervision Directorate of
Work Safety Norms,
Company’s Hygiene and
Worker’s Health at the
DOMT.
Working places involving the generation, transformation, allocation, storage or distribution of electricity, gas, water and
oil must comply with this Work Safety Law. The safety conditions have been more specifically set forth in implementing
regulations in relation to the planning, production, transportation, circulation, marketing, installation, use, application
maintenance and storage of materials, goods, technical products and means of production, which involve or may
cause a danger of accident.
For the installation of electrical equipment or machinery in a workplace, the prior approval of the Supervision
Directorate of Work Safety Norms, Company’s Hygiene and Worker’s Health of the local DOMT must be obtained.
Use of electrical equipment or machinery in a workplace should also comply with the worker’s safety requirements and
is subject to a separate prior approval of the same health and safety Directorate.
23 Work permits for related
expatriates
In the event the IPP intends to employ expatriate, such expatriate shall first obtain the work permit.
Dr. Hanny J Berchmans
Project Development Manager