Agreement Modifies Imported and Exported Merchandise Regulated by SENER in Mexico | Holland & Knight LLP

The Mexican Ministries of Economy (Secretaría de Economía or SE) and Energy (Secretaría de Energía or SENER) on Nov. 6, 2023, published in the Official Gazette of the Federation (Diario Oficial de la Federación or DOF), the “AGREEMENT that modifies the previous agreement that establishes the goods which importation and exportation is subject to regulation by the Ministry of Energy.” The purpose of the agreement is to combat practices consisting of adulterating fuels commercialized in Mexico through imports of hydrocarbons and petroleum products, for the mixture of fuels and their use in combustion engines with gasoline or diesel.

Background

  • On Dec. 26, 2020, the agreement that establishes the imported and exported goods subject to regulation by the Ministry of Energy was published in the DOF. This agreement was amended on Nov. 22, 2022.
  • On Oct. 23, 2023, SENER published in the DOF the decree establishing measures to combat the illicit fuel market, related to the importation of goods regulated by SENER. In the aforementioned decree, SENER requested several federal authorities to carry out different activities according to their competence. In this regard, SENER instructed the SE on various issues: 1) to regulate the non-tariff control measures for imports and the traceability of the goods, and 2) to make adjustments to the registries, lists, systems and platforms, physical or electronic, related to the import and traceability of the goods mentioned in the decree, as well as to make the necessary adjustments to the regulation, or any other action required for the effective compliance with the decree.

Main Reforms and Additions

  • Addition of Definitions. The following definitions are added: 1) goods for sports events, 2) goods for testing and 3) goods for own use.1
  • Term. Prior permits for import and/or export of petroleum products or hydrocarbons shall be granted for periods of: 1) 60 days for goods destined for sport events and for testing and research, 2) one year and 3) five years.
  • Procedures only through the Digital Window. All prior permit applications or extensions must be processed through the Mexican Foreign Trade Digital Window.
  • Information request by SENER. SENER may request at any time and from any institution, agency or third party, information related to the value chain of the petroleum products or hydrocarbons sector, in order to determine the granting or rejection of a prior permit application, as well as its renewals.
  • Additional requirements for prior import and export permits. Additional requirements include: 1) positive opinion regarding compliance with tax obligations, 2) authorizations required to carry out the activity, 3) technical specifications sheet, 4) if no import record, a letter of intent to purchase must be submitted to justify the volume, and 5) proof of the validity of the permit, among others.
  • Additional requirements per goods to be imported or exported. Various manifestations depending on the validity of the permit requested; in addition, in the case of imports, if the applicant is obliged to comply with the Public Policy for Minimum Storage of Petroleum Products (PPMSPP), it is necessary to prove its compliance.
  • Additional accreditations for renewals. SENER includes an accreditation for granting renewals, consisting of the verification of the use and destination of the goods, as well as proof that the original conditions and the corresponding commercial relations prevail and will be executed during the requested renewal.
  • Additional grounds for termination. The following conditions for termination are included: 1) false declarations, 2) submission of false documentation and 3) penalties for committing administrative offenses, among others.

Regulatory Considerations

The agreement provides for a series of additions and amendments, which could affect the legal sphere of the petitioners, including the following considerations:

  • additional requirements for prior permit applications
  • accreditations on the use of previous permits
  • renewals granted only for extension of validity and not for volume
  • prohibition of renewals for previous permits with 60 days of validity
  • addition of the expiration procedure
  • additions to permit termination assumptions

Entry into Force

The agreement takes effect on the day following its publication, i.e., Nov. 7, 2023.

For the goods contained in Annex II of the agreement, the prior permit will be required 30 business days after its entry into force. Prior permit applications submitted before Nov. 7, 2023, will be processed in accordance with the previous regulation. Those previous permits granted before Nov. 7, 2023, will be valid until the term expressly indicated therein.

Notes

1 All hydrocarbons and petroleum products mentioned in this section are included in Annex II of the agreement.

Leave a Comment

Your email address will not be published. Required fields are marked *