How is the rail transport industry generally structured in your country?
The Mexican Constitution establishes that railways are a priority area for national development. The federal government is the main authority in this industry as it plans and establishes policies, as well as coordinates, regulates and supervises the rail sector. The rail transport industry is being developed mainly through concessions granted to private parties for the latter to render cargo and passenger transport public services, although passenger trains are still undeveloped. Ferrocarril del Istmo de Tehuantepec (FIT) is the only rail cargo line that is still owned and operated by the government through an entitlement that is granted to a state-owned commercial entity.
Considering elements such as national security and sovereignty, the government maintains full domain over the general communication networks and key infrastructure such as, for instance, railways and associated buildings and workshops, as well as right of way (ROW) and signalling. Private parties acting as concessionaires are obligated to exploit, increase, operate and maintain the network as well as to render transport public services. However, the concessionaires are the owners of the rolling stock and related equipment. At the end of the concession, concessionaires shall hand over to the government the network and the associated key infrastructure, including any improvements. The government has the right of first refusal and preferential right to acquire the rolling stock and associated equipment owned by the concessionaire.
The rail transport industry has been structured under basic principles such as free competition, operative efficiency, reduced costs, and access and interconnection between lines and systems.
Under the applicable legal framework, there are three types of regulatory approvals:
- concessions to private parties to render the cargo or passenger transport public service;
- permits to private parties to render ancillary services such as cargo terminals and maintenance workshops, as well as to conduct other activities, such as constructing crossings or bridges over the railways; and
- entitlements to local or municipal governments, as well as to government-owned entities, such as FIT.
The Ministry of Communications and Transport (SCT) is in charge of granting the concessions, permits and entitlements, and supervising compliance with their terms. However, the Railway Transport Regulatory Agency (ARTF) is the agency expressly created by the government to, among other things, regulate the railway transport in general, including technical, operative and safety features and standards; supervise the services rendered by concessionaires; secure interconnection; and establish guidelines to implement tariffs when there is a lack of competition.
Ownership and control
Does the government of your country have an ownership interest in any rail transport companies or another direct role in providing rail transport services?
Yes. For example, as mentioned in question 1, the government owns FIT, which holds an entitlement because it is a state-owned entity. Although the rail sector is open to private participation through the granting of concessions, the government decided it was vital to hold ownership of FIT for many reasons, including national sovereignty and security. FIT connects the Port of Coatzacoalcos (Gulf of Mexico) with the Port of Salina Cruz (Pacific Ocean) over a distance of approximately 300km, through the region known as the Isthmus of Tehuantepec. Geographically and conceptually, the Isthmus of Tehuantepec divides the country into northern Mexico and southern Mexico, and for decades many foreign governments and companies have tried to obtain access to the Gulf of Mexico and Pacific Ocean through it. Originally, FIT’s entitlement contemplated maintaining the railway as a key activity as well as granting and receiving pass-through rights with other companies. However, the entitlement was amended this year to include exclusivity for the rendering of cargo transport public service, among other things.
Are freight and passenger operations typically controlled by separate companies?
Not necessarily. Freight and passenger operations can be controlled by separate companies depending on the terms and conditions of the concession granted to each concession holder. For instance, the most relevant concessions in Mexico are solely dedicated to rendering cargo transport public service; this includes companies such as Kansas City Southern de México, Ferrocarril y Terminal del Valle de México, Ferromex and Ferrosur. However, by law, rail transport is contemplated for both passengers and freight. For instance, Grupo México, which owns Ferromex and Ferrosur, also owns Chepe, a passenger train dedicated to the tourism industry. However, the Ojinaga-Topolobampo line carries freight and passengers, and both operations are controlled by the same company under one concession.
Which bodies regulate rail transport in your country, and under what basic laws?
Rail transport and related rail services are mainly regulated by the Rail Service Law and by the Regulations of the Rail Service. Other laws and regulations that apply include the following:
- the General Communications Networks Law;
- the General Law of National Assets;
- the Federal Law of Administrative Procedure; and
- the Federal Commercial Code, the Federal Civil Code and the Federal Code of Civil Procedure.
The SCT and ARTF are the main regulatory authorities.
Is regulatory approval necessary to enter the market as a rail transport provider? What is the procedure for obtaining approval?
Yes, for purposes of being awarded a concession, bidders participating in a public tender process must obtain clearance from the antitrust agency, the Federal Economic Competition Commission (COFECE). The procedure and time frame to obtain clearance will be expressly laid down in the tender rules and must be strictly followed by each interested bidder.
Is regulatory approval necessary to acquire control of an existing rail transport provider? What is the procedure for obtaining approval?
In principle, it is not necessary to obtain regulatory approval to acquire control of an existing rail transport provider. Any concession holder must notify the SCT about any change in the shareholding structure, whether direct or indirect, of the capital of the concessionaire, when such participation is equal to or greater than 5 per cent. Depending on various factors, including the size of the transaction and monetary value or the end result regarding the combination of market sales and assets, the parties wishing to acquire control may have to obtain clearance from COFECE.
However, any assignment of rights and obligations by concession and permit holders to any third parties will require prior authorisation from the SCT.
Is special approval required for rail transport companies to be owned or controlled by foreign entities?
Foreign entities cannot wholly own or control a rail transport concessionaire in Mexico, or a company engaged in constructing, operating and maintaining railways. The Rail Service Law and the Foreign Investment Law provide that the participation of foreign shareholders cannot exceed 49 per cent of the total capital stock of the relevant company, unless the Foreign Investments Commission approves a higher percentage. Only Mexican commercial companies organised under Mexican law may act as concessionaires or permit holders.
Is regulatory approval necessary to construct a new rail line? What is the procedure for obtaining approval?
When participating in a tender process to obtain a concession for a new rail line, construction will typically form part of the concession itself, and therefore it will not be necessary to obtain a permit separately. However, concession holders may contract construction with third parties. In that case, those third parties must obtain a permit from the SCT, although the sole party liable before the SCT will always be the concession holder.
Discontinuing a service
What laws govern a rail transport company’s ability to voluntarily discontinue service or to remove rail infrastructure over a particular route?
The Rail Service Law foresees the scenarios in which concessions and permits are revoked. If a rail transport company voluntarily refuses to perform or discontinues service, the concession may be revoked. In addition, the rail transport companies do not have the ability to remove rail infrastructure over a particular route either because they do not own that infrastructure, such as the tracks, or because even if they own equipment such as rolling stock and associated equipment, that equipment can only be used under the terms of the concession or permit. Failure to comply will also result in revocation of the concession or permit. The SCT’s and ARTF’s supervising and sanctioning faculties are set forth in the Rail Service Law.
On what grounds, and what is the procedure, for the government or a third party to force a rail transport provider to discontinue service over a particular route or to withdraw a rail transport provider’s authorisation to operate? What measures are available for the authorisation holder to challenge the withdrawal of its authorisation to operate?
The Rail Service Law contemplates various scenarios under which a concession or permit can be revoked, including if the concessionaire or permit holder (i) fails to exercise its rights and duties; (ii) transfers the concession or permit, or assigns rights and obligations without prior consent; (iii) changes nationality; (iv) interrupts the operation of the railway or the transport service, unless expressly permitted; or (v) applies higher tariffs than those registered with the ARTF. In scenarios (i), (ii) and (iii) the SCT will immediately revoke the concessions or permits. In other cases, such as (iv) and (v), it may revoke the concessions or permits prior to receiving the ARTF’s opinion, if the holder has breached or defaulted three times within five years.
If a controversy arises between a concession holder and a third party, the ARTF is empowered to investigate and resolve it.
The initial measure available to a concession or permit holder in case of revocation is to initiate an administrative procedure against the resolution adopted by the SCT, under the provisions of the Federal Law of Administrative Procedure. Legal remedies can result in a constitutional trial or amparo proceeding.
The government may also force a rail transport service provider to temporarily discontinue service over a particular route or cease to operate in case of a natural disaster, war, disturbance of public order or an event that may threaten national security, internal peace or the economy of the country. If this occurs, the government may be able to take control of the concession. This condition will be enforced for as long as the element that motivated it exists. With the exception of an international war, the government will indemnify the rail transport provider for any damage and financial loss caused.
The government can also suspend services but the concession holder is entitled to challenge the suspension through an administrative appeal under the Federal Law of Administrative Procedure.
Are there sector-specific rules that govern the insolvency of rail transport providers, or do general insolvency rules apply? Must a rail transport provider continue providing service during insolvency?
General insolvency laws apply. The Rail Service Law provides that in case of liquidation or insolvency the concession or permit will be terminated. However, the termination of the concession or permit for this reason does not remove the obligations of the holder, acquired during the term of the concession or permit.
Do general and sector-specific competition rules apply to rail transport?
Under the current competition legal framework, the Federal Law of Economic Competition and its Regulatory Provisions are the only competition provisions that apply and regulate rail transport in Mexico (ie, there are no sector-specific competition rules). Consequently, COFECE is the agency that enforces this legal framework.
Regulator competition responsibilities
Does the sector-specific regulator have any responsibility for enforcing competition law?
The sector-specific regulatory agency is the ARTF and it is not empowered to enforce any competition provisions. In accordance with the Rail Transport Law, the ARTF can request COFECE to intervene in the rail transport industry, in order to issue an opinion on the lack of effective competition conditions on a particular market.
In addition, COFECE and the ARTF are working on the development of an official methodology to enhance competition in the rail industry, by establishing the basis of tariff regulation and the consideration of pass-through rights, towing rights, interconnection and terminal services when providing the public service of freight and passenger rail transport in Mexico. At present, only a draft version of the above-mentioned methodology is available and has been published for public consultation.
What are the main standards for assessing the competitive effect of a transaction involving rail transport companies?
As in any other transaction, at the outset, COFECE analyses the levels of concentration in the market (both before and after the intended transaction takes place) in order to determine whether the transaction could negatively impact the market and, therefore, if it requires a thorough analysis before being cleared.
Additionally, in line with COFECE’s legal precedents in cases related to the rail industry, it conducts its analysis of the possible competition effects resulting from an intended transaction on a route-by-route basis considering the relevant railway networks available and involved in each case.
Ultimately, COFECE will approve the transaction if it concludes that the transaction will not produce anticompetitive effects, for example if the involved routes are not affected, or the resulting entity would have enough competitive constraints and would not attempt to manipulate the price of its services to increase the costs for the clients in the relevant market under analysis.
Types of regulation
Are the prices charged by rail carriers for freight transport regulated? How?
The Rail Service Law provides two schemes for fixing the prices and tariffs regulation. The first scheme is under the principle of freedom of tariffs regulation in which concession and permit holders can freely fix the tariffs. The second scheme is through agreed tariffs between the concession holders and final users.
Regarding the first scheme, in order to become effective, the concession and permit holders will register before the ARTF the maximum tariffs applicable to the provision of the rail transport service and rail-related services. In that sense, according to the specific characteristics of each service, the concession and permit holders shall publish the prices and tariffs in electronic media. Any modification to the maximum tariffs of rail-related services and charges must be registered before the ARTF before being applied, in which case the concession or permit holders must submit a justification of such modifications. Regarding the second scheme of agreed tariffs, figures should be available at any time so that the ARTF may review them when it chooses to do so.
The tariffs must contemplate the general principles of quality, efficiency, competitiveness, security and permanence in order to foster a competitive environment. If the ARTF determines that there is no effective competition, then it can set forth the guidelines to establish said tariffs.
Are the prices charged by rail carriers for passenger transport regulated? How?
The same regulations and principles apply for both passenger and freight transport, as described in question 15.
Is there a procedure for freight shippers or passengers to challenge price levels? Who adjudicates those challenges, and what rules apply?
Freight shippers or passengers can challenge price levels before the ARTF. Charging tariffs above those registered with the ARTF can result in revocation of the concession or permit.
In the event a concessionaire or permit holder wants to modify the maximum registered tariffs, the ARTF may issue recommendations regarding any increases and, if it deems convenient, may request an opinion from COFECE.
Must rail transport companies charge similar prices to all shippers and passengers who are requesting similar service?
Following the principles of tariff freedoms, effective competition, quality, efficiency, competitiveness, security and permanence, rail transport companies must charge similar prices to all freight shippers and passengers who are requesting similar service. That is to say, the rail transport companies should not discriminate between freight shippers and passengers who, under the same circumstances, request a service.
Sharing access with other companies
Must entities controlling rail infrastructure grant network access to other rail transport companies? Are there exceptions or restrictions?
According to the Rail Service Law, network access must be granted. The concession holders, in exchange for a consideration, must grant to other concession holders pass-through rights and towing rights. In that sense, the ARTF must supervise the network access, and should design and set forth the conditions and considerations when the pass-through rights and towing rights are not being granted.
The concession holders must allow network access when it is established in the terms and conditions of the concession titles, or mutually agreed or demanded by the ARTF if COFECE has determined that there is an absence of effective competition.
The only restriction for granting network access is in terms of total length. Access right to a network cannot exceed the length of the concession and pass-through rights acquired by the concessionaire.
Are the prices for granting of network access regulated? How?
The concession holders granting network access must negotiate and agree the consideration to be paid. If the parties do not reach an agreement within 60 calendar days of starting negotiations, they must appear before the ARTF, which may commence a negotiation procedure in order to set forth the consideration for granting network access. If the parties fail to reach an agreement, the ARTF is entitled to request an opinion from COFECE that it will use to determine the applicable conditions and considerations.
Is there a declared policy on allowing new market entrants network access or increasing competition in rail transport? What is it?
No, there is no declared policy on allowing new market entrants network access. However, the Rail System Law and the rail transport industry aim to foster railway development in a competitive environment with a strong emphasis on cost efficiency, tariffs and service quality.
Must rail transport providers serve all customers who request service? Are there exceptions or restrictions?
Rail transport providers must serve all customers who request the service. Freight or passenger services shall be rendered to all users in a uniform manner, and in equitable conditions regarding opportunity, quality and price. Restrictions include, for instance, the right of a transport provider to deny service to passengers who are inebriated or under the influence of drugs, who are carrying any weapons, explosives or dangerous merchandise, or who otherwise pose a risk to the other passengers on board. With regard to freight services, shippers must refuse to transport any goods that are illegal or prohibited under Mexican laws.
Are there legal or regulatory service standards that rail transport companies are required to meet?
The service standards that rail transport companies are required to meet are set forth in each concession title and also through the provisions of Mexican Official Standards (NOMs). The SCT will add a document to the concessions or permits describing the service standards that must be fulfilled. Generally, the service standards regulate efficiency and safety, including for crossings and towing equipment.
Is there a procedure for freight shippers or passengers to challenge the quality of service they receive? Who adjudicates those challenges, and what rules apply?
Freight shippers or passengers can challenge the quality of the service received from the rail transport companies before the ARTF. The agency will resolve the controversy, considering the technical specifications and quality of service with which the rail transport company must comply, and may impose monetary sanctions upon the concessionaire or permit holder.
Types of regulation
How is rail safety regulated?
Rail safety is mainly regulated in the Rail Service Law and the Regulations on Rail Service; it is also regulated through NOMs. For instance, NOM-025-SCT2-2016 issued by the SCT deals with safety measures for towing equipment involved in cargo service.
The Rail Service Law foresees two types of liabilities if the concession holder fails to keep the passengers or freight safe. For instance, the measures adopted by the concession holders for passengers must guarantee the safety and integrity of passengers during the journey, from boarding the train to disembarking. The concession holder will be liable for any damage suffered during the journey. In any case, the concession holder must possess insurance that covers passengers as well as any damage to their belongings.
From the moment that freight concession holders receive the goods to be transported to the moment they conclude the delivery, they are liable for the losses and damage suffered, with the exception of the following cases:
- defects of the freight or inadequate packaging;
- when the freight, because of its nature, suffers deterioration or damage, provided that the concession holder meets the delivery time;
- when, upon written request from the customer, the goods are transported in unsuitable vehicles; and
- when the statements or instructions of the shipper or consignee are incorrect.
What body has responsibility for regulating rail safety?
The SCT and ARTF are the responsible entities for establishing and regulating rail safety. For instance, the SCT publishes NOMs that rule on diverse matters such as railway crossings and signalling. The ARTF is responsible for determining technical specifications of railways and cargo or passenger service, and for applying NOMs, among others.
Permit and concession holders are also obligated to implement their own safety programmes and submit them before the ARTF, prior to initiating operations.
In addition, the ARTF may issue recommendations to federal, local and municipal administrative entities and concessionaries to collectively promote public safety measures and actions, in large part because theft and vandalism are causes of significant concern.
What safety regulations apply to the manufacture of rail equipment?
This is not applicable in Mexico because concessionaries rent or acquire rail equipment primarily from the United States. Therefore, rail equipment must conform with US standards, which are familiar and accepted in Mexico.
What rules regulate the maintenance of track and other rail infrastructure?
There are various NOMs that regulated the maintenance of track and other rail infrastructure. For example, NOM-055-SCT2-2016 provides rules on how to assure quality related to welding railway tracks, while NOM-064-SCT2-2001 regulates how to conduct inspections of locomotive equipment (this NOM adopts the US Railroad Locomotive Safety Standards). The SCT approved the Conservation of Roads and Infrastructure for Mexican Railways Regulations, which provides specific regulation regarding maintenance of track and other rail infrastructure. Concession holders are also obligated to implement their own investment, maintenance and upgrading programmes.
What specific rules regulate the maintenance of rail equipment?
NOMs regulating the maintenance of rail equipment include NOM-044/1-SCT2-1997 and NOM-044/2-SCT2-1995. These NOMs establish the procedure to conduct inspections and scheduled repairs for rail equipment, which can take place daily, or for every journey at every quarter or intervals of 48,000km. As mentioned in question 28, concessionaires are required to implement their own investment, maintenance and upgrading programmes as a condition of their concession titles.
What systems and procedures are in place for the investigation of rail accidents?
If a rail accident occurs, the ARTF will form a specific commission to determine the causes and factors of the accident. The commission must compile information, and investigate and analyse the physical, technical and administrative evidence, including photographs and testimonials. The ARTF must cooperate with the authorities that participate in the administrative and judicial procedures. The ARTF will designate specialised personnel to travel to the place of the accident in order to assess the condition of the tracks and the rail infrastructure, for which it can request the services of third-party experts. Moreover, the concession holder must submit a technical report to the authorities, which establishes, among other aspects, the causes and circumstances of the rail accident. The ARTF will issue a final report on the accident and will determine the responsible parties.
Are there any special rules about the liability of rail transport companies for rail accidents, or does the ordinary liability regime apply?
As mentioned in question 25, the Rail Service Law makes reference to certain types of liabilities for rail transport companies in case of rail accidents, which are provided for in the ordinary liability regime regulated in the Civil Code.
Does the government or government-controlled entities provide direct or indirect financial support to rail transport companies? What is the nature of such support (eg, loans, direct financial subsidies, or other forms of support)?
As described in question 1, the rail sector mainly operates by granting concessions through third parties by means of a public tender process. This arrangement does not contemplate any monetary investment by the government. However, as part of the concession, the government contributes assets such as ROW, and tracks and buildings. The government will be entitled to receive a consideration for awarding the concession, as well as on an annual basis for the exploitation of the concession. The concessionaire is obligated to provide all funding required to construct, operate and maintain the line, and provide the cargo or passenger service.
There are other cases in which the government has provided support for rail projects. For instance, there is an urban railway project known as Tren Suburbano that was structured under a concession in different phases. In order to make the Cuautitlán-Buenavista phase viable and bankable, the federal government, together with the local governments of the state of Mexico and Mexico City, contributed non-recoverable grants. The tariff collected from users covers operations and maintenance. Currently, the federal government owns 49 per cent of Tren Suburbano. Other projects include the Guadalajara Light Train System and the Monterrey Metro Line 3.
Are there sector-specific rules governing financial support to rail transport companies and is there a formal process to request such support or to challenge a grant of financial support?
Until 2008, there were no sector-specific rules governing financial support to rail transport companies; in the event that a rail company needed support, it had to resort to traditional or standard loan or project finance structures. However, in 2008 the National Infrastructure Fund (Fonadin) was established, which provides financial support to public or private entities that want to develop infrastructure projects or conduct research for these projects. This financial support can be loans, guarantees or recoverable and non-recoverable support in the form of grants.
Applicable labour and employment laws
Are there specialised labour or employment laws that apply to workers in the rail transport industry, or do standard labour and employment laws apply?
There is a specific chapter in the Federal Labour Law that refers to the public service work in areas or zones under federal regulation. This chapter applies to work involving loading, unloading, stacking, handling, inspection, docking, berthing, hauling, storage and transfer of cargo and baggage performed on board ships or on shore, at ports, navigation waterways, railway stations and all other areas falling under federal jurisdiction, including activities performed with tow boats and additional or related activities.
Applicable environmental laws
Are there specialised environmental laws that apply to rail transport companies, or do standard environmental laws apply?
The general environmental laws that apply are the following:
- General Law of Environmental Protection;
- General Waste Law;
- Federal Law of Environmental Responsibility; and
- General Law of Climate Change.
The only specific framework that applies are the Regulations for Terrestrial Transport of Hazardous Materials and Waste. NOMs also apply to environmental matters related to this sector; for instance NOM-021-SCT2/2017 deals with the compatibility and segregation of towing units transporting hazardous material and waste.
Update and trends
Update and trends
Are there any emerging trends or hot topics in your jurisdiction?
Mexico has recently formalised the launch of the special economic zones (SEZs), which are intended to attract investment into the less-developed southern regions of Mexico, and, at the same time, provide many incentives to investors, such as tax exemptions and preferential treatment. There are currently seven SEZs and the rail transport industry is expecting substantial amounts of investment in those zones that will connect the southern regions with the rest of Mexico and abroad.
The recent energy reforms have created opportunities to expand the rail transport industry and its infrastructure. Trains are considered to be a crucial part of the transport system that provide more flexibility for the energy market, as well as faster and more secure deliveries. For instance, according to the ARTF, in 2017 the rail transport industry transported 13.9 per cent more oil and by-products than in 2016. From a cost perspective, and considering Mexico’s lack of pipeline infrastructure and security issues with pipelines, trains are probably the best option for transporting oil products. Strategic distribution lines, storage facilities and terminals are currently under construction, and rail cargo companies should benefit from this expansion. These opportunities, coupled with growing imports and exports including those related to key industries such as automotive, agriculture and mining, will undoubtedly encourage further development of Mexico’s railway infrastructure.
Another hot topic is the construction of the Mexico City-Toluca high-speed passenger train. This project is the first of its kind in Mexico but progress has been slow owing to numerous delays and corruption scandals. The President-elect, Andrés Manuel López Obrador, will take office on 1 December 2018. It is expected that this project will still be under construction by that date. It is yet to be determined how Mr López Obrador will receive this project and how it will be completed and commissioned. He has stated that his team will very carefully audit each and all contracts related to the project.
Finally, since 1 July 2018, Mr López Obrador has been unveiling the list of top infrastructure projects for the new administration. The top project consists of redesigning and revamping roads and railways in the Isthmus of Tehuantepec corridor that connects the Port of Coatzacoalcos with the Port of Salina Cruz. As mentioned in question 2, FIT holds an entitlement to render rail cargo transport service on its route through the Isthmus of Tehuantepec. This will be a great opportunity to revamp FIT and its rail infrastructure. In addition, Mr López Obrador has proposed to resume the Mexico City-Queretaro high-speed passenger train as one of his top priorities. He has also proposed building a passenger rail line to cover the Cancún-Palenque route (recently expanded to cover Yucatán and Campeche states), which will be used solely in the tourism sector. The administration may also be responsible for creating a new national rail network.