On June 11, 2021, the Mexican Treasury published in the Federal Official Gazette the Seventh Amendment to the Foreign Trade Guidelines, which mostly entered into force on June 12.
Amongst these amendments, Rule 2.4.1 was considerably amended, this Rule refers to the possibility to import / export goods through premises other than the customs houses.
In accordance with the Mexican Customs Law article 10 (MCL) it is possible to carry out the importation of goods through places other than “authorized places”, this is, through places other than the customs house itself.
Generally, the goods which importation may be authorized to be imported under this procedure are those that by virtue of their nature may not be imported through the customs house o well those which may be more efficiently or easily imported through different places that have the necessary infrastructure to carry out such import procedures.
Amongst the diverse goods which may be considered to fall within this concept are hydrocarbons and oil products, fuels, diverse chemical products, minerals, bulk agricultural products, etc…
The former text of the above mentioned Rule established that for purposes of the MCL article 10, entities interested in obtaining the corresponding authorization could request it thorough filing of the corresponding formats and documents.
Likewise, the cited rule established that the “State Productive Entities” that carry out the importation of crude oil, petrochemicals and related products, gas, etc… bound for the international transit of goods must initiate and finalize these kind of operations in the authorized terms, routes and conditions.
Under the above Rule, any legal entity that required these kind of import procedures could request the corresponding authorization provided it met the applicable requirements.
This Rule enabled private entities to import, among other products, petrochemicals and diverse kinds of chemicals importation through premises other than the customs houses thus providing an efficient platform to import these products under competitive costs and simplified procedures.
However, under the above mentioned amendments, the Rule was amended in order to establish that the authorization to import certain products under such “simplified” or efficient procedure would be limited only to those legal entities considered as “State Productive Entities”.
Effectively, the above mentioned Rule was drafted to establish:
2.4.1. For purposes of the Customs Law Article 10, Second Paragraph and its Regulations Article 11, legal entities interested in obtaining the authorization for the importation of goods through premises other than those specifically authorized therefor or its extension may request it through the filing of the procedure set forth by format 49/LA of the Administrative Guidelines Annex 1-A.
In case of the following products, the authorization or extensión will be granted exclusively to those entities considered as State Productive Companies, their subsidieries and subsidiary productive comopanies:
I. Hydrocarbons, oil products and those mixed with other non-oil components, gas, petrochemical and related products, bio-fuels, including those listed in Sector 12 (Ethylic Alcohol” and 13 Hydrocarbons and Fuels included in Section A, Annex 10 and Annex 14.
II. Chemical precursors for:
a) Fentanyl considered within Tariff Item Numbers: 2903.99.99, 2921.41.01, 2933.33.03, 2933.39.24, 2933.39.99.
b) Methamphetamine classified under Tariff Item Numbers: 2811.19.99, 2837.19.99, 2903.12.01, 2904.20.99, 2912.11.01, 2914.13.01, 2914.40.02, 2914.40.99, 2915.11.01, 2915.12.03, 2915.13.01, 2915.31.01, 2916.34.01, 2916.39.08, 2916.39.99, 2921.19.99, 2922.50.99, 2924.19.06, 2924.19.99, 2924.29.99, 2930.90.99, 2932.92.01, 2932.99.99, 2939.41.01, 2939.42.01, 2939.49.99, 2939.69.99.
c) Essential Chemical Products classified under Tariff Item Numbers: 2801.20.01, 2804.70.04, 2811.29.99, 2815.11.01, 2815.12.01, 2815.20.03, 2827.10.01, 2827.20.01, 2841.69.99, 2902.20.01, 2905.59.99, 2915.29.99, 2915.31.01, 2915.39.99, in heading 29.18, 2918.16.03, 2922.19.99, 2926.90.99, 2930.90.99.
III. Minerals and mineral ore, including those contemplated by the Mexican Tariff Schedule Chapters 25 and 26 in case of exportation of these products abroad.
Through this amendment, the possibility to obtain the necessary authorizations are restricted to those entities considered as State Productive Companies for the above listed goods based on their tariff classification.
This amendment basically restricts the possibility for private entities interested in carrying out the importation or exportation of such goods through specific premises other than the formal customs houses to do so, being such alternative only available to the so called “State Productive Companies”. This restriction is not contemplated by any formal Law, duly passed by Congress, and thus may be deemed as exceeding the limitations for these importations, as well as contrary to other legal provisions as could be Federal Constitution, diverse Free Trade Agreements, Federal Tax Code, Competition Laws, etc…
It should be noted that the State Productive Companies are established in the Mexican Federal Constitution Article 25, Fourth Paragraph, which establishes the exclusive right of the Mexican state to control areas considered as strategic for purposes only of their ownership.
However, one of the most relevant characteristics of these so called State Productive Companies is that such shall be considered for all purposes as equal to the private entities and thus subject to the same rights and obligations and market participation.
As such, the limitation established by the above mentioned Rule, may clearly be considered as illegal, unconstitutional and contrary to diverse international agreements entered into by Mexico, among which are the Customs Law, Foreign Trade Law, Federal Law on Competition, Federal Constitution, etc…
The fact that private entities are not permitted to obtain these kinds of authorizations is clearly a differential treatment to the so called State Productive Companies.
In this same connection, except for oil and hydrocarbons, there exists no legal grounds upon which it may be considered that chemical products and minerals and ore should be included within the scope of State Productive Companies. Likewise, there exist no State Productive Companies which purpose includes the importation / exportation and marketing of the above mentioned chemical products or minerals and ore.
Implementing this Rule, would imply that the State Productive Companies will have a much more favorable and advantageous position than other private entities to import these goods through more efficient structures and premises.
Likewise, in the specific case of minerals and ore, there would be no possibility to export these thorough the procedure set forth by the MCL Article 10, due that to this date, there is no State Productive Company that includes in its activities these kinds of goods, thus being in reality a restriction to export these goods under the simplified procedure.
It is very clear that in case of products contemplated by Section II and III of the above mentioned Rule, part of its purpose is to avoid organized crime to participate in these importation / exportation procedures thorough simplified or more efficient procedures that may represent additional challenges for the customs authorities to verify or audit.
In this same connection, it is also very clear that the limitation to import hydrocarbons and petrochemicals through this procedure will imply additional restrictions for private entities to participate in this market, due that the Mexican oil company, PEMEX and its subsidiaries would be the only entitled entities to request these permits which would give it an unfair and uncompetitive advantage over all other entities wishing to import these products.
We believe that this Rule is not only contrary to diverse legal provisions, but also a very crude manner to restrict the importation and exportation of the above mentioned products.
In any case, the restriction to the importation and / or exportation of goods, including all the above cited may be formally achieved through other alternatives as set forth by the Foreign Trade Law or even through the exclusive powers granted to the Executive Branch by the Federal Constitution Article 131.
Effectively, this Article establishes the possibility to restrict, regulate or even forbid the importation and / or exportation of goods due to, among other, security reasons.
We believe that this Rule may be challenged by those legal entities which are directly affected by it, whether due to the denial of the permit or its term extension. The specific legal remedies would have to be determined based on the time required for their resolution and specific situation of each of these companies.