The Secretary of Energy in Mexico (Secretaría de Energía en México o SENER) on Oct. 23, 2023, published in the Official Gazette of the Federation (Diario Oficial de la Federación o DOF) the "Decree establishing measures to combat the illicit fuel market, related to the importation of goods regulated by the Ministry of Energy" (Decree). Such Decree is intended to combat illegal fuel mixtures.

The Decree temporarily restricts the importation of goods corresponding to the 68 tariff items of the Law of General Import and Export Taxes¹ (La Ley de los Impuestos Generales de Importación y de Exportación), which includes petroleum, gasoline, diesel, fuel oil and lubricants, which may encourage the illicit fuel market, as well as smuggling. The purpose of the measures is to avoid: 1) imminent damage to health and the environment; 2) harm to the health and safety of the population near the fuel handling centers; and 3) negative impact on private vehicles and public transportation.

Scenarios of Application

Parties Interested in the Importation of Goods: For all those interested in importing the goods referred to in the sole annex of the Decree, they must request and prove to the Undersecretary of Hydrocarbons: 1) the volume and destination of the goods to be imported; 2) if the import of those goods is necessary for their production process; (3) if the import purpose is the development or performance of a lawful activity; and 4) that the import does not contravene the provisions of the Decree.

Permit Applicants: For those applicants that intend to enter into Mexican territory with goods that require a previous import permit from SENER, they must prove before the Undersecretary of Hydrocarbons: 1) the volume and destination of the goods to be imported is necessary for its production process; 2) they will have as a purpose the development or performance of a legal activity; and 3) the import of the goods does not contravene the Decree, in order to comply with the requirements enforced for the granting of the previous import permit.

Existing Permits

For those who have a previous import permit for any of the goods referred to in the sole annex of the Decree, they may continue with their operations and must inform the Undersecretary of Hydrocarbons within a maximum period of 30 working days: 1) their intention to continue with the operations approved by their permit and that the import correspond to a volume and destination of the goods necessary for their production process; 2) which will be used for the development or performance of a lawful activity; and 3) does not contravene the Decree.

Once the request has been submitted by the applicant or permit holder (holder of the prior import permit), SENER has 15 business days to analyze the information provided and resolve the request.

Finally, it is important to mention that the supply in the national territory of the goods listed in the sole annex of the Decree will be guaranteed by the federal government, through the centralized sector, state-owned companies and even productive companies within the State.

Compliance Guidelines: Transitional Activities

In the Decree, different federal authorities are requested to carry out diverse compliance and verification activities, within the scope of their competencies, in accordance with the following:

• Regulate the nontariff import control measures and the traceability of the goods corresponding to the tariff items of the Law on General Import and Export Taxes (Ley de los Impuestos Generales de Importación y de Exportación or LIGIE), which are listed in the sole annex of the Decree.
• Carry out adjustments to the registries, standards, systems and platforms, both physical and electronic, related to the importation and traceability of the merchandise subject of the Decree, as well as perform the necessary adjustments to the regulation or any other action that may be required for the effective compliance with the Decree.
• Increase and intensify the inspection and verification of transfer facilities, intermodal terminals, storage terminals or any other facility or means of transportation in which the goods subject to the Decree are deposited, and compliance with the regulations enforced, and those issued by SENER and the Secretariat of Economy. (These activities will be carried out permanently as a result of the Decree.)
• Determine the specific customs offices through which customs clearance must be carried out for the import of the goods specified in the sole annex of the Decree. (These activities will be carried out permanently as a result of the Decree.)

It is also important to emphasize that SENER published on its website a guide and an example of a brief to comply with Article One of the Decree.

Regulatory Effects

The Decree foresees a series of regulatory effects for those sectors that are directly related to such activity:

• Indefinite temporality of the restriction, since the duration of this "corrective" measure is uncertain.
• Limitation of imports of 37 tariff items that correspond to mineral products and 31 tariff items of the chemical or related industries of LIGIE.
• Impacts on the commercial operations of different organizations that are directly or indirectly related to the sectors of energy, foreign trade, automotive, chemical and lubricants, among others.
• New attributions to the federal authorities with the objective of fully complying with the Decree, directing them to carry out additional reviews and inspections in the corresponding areas of competence.

Defense Mechanisms

Given that the Decree could violate various human rights and constitutional guarantees, anyone who considers that the Decree is affecting them may choose to file an indirect Amparo proceeding, in which the petitioner may request the suspension of the disputed act while the substance of the matter is being processed and resolved, in such a way that the disputed provisions are not applied until the constitutionality of the Decree is resolved. Those who desire to use this defense mechanism should consider the following:

• 30 days following the entry into force of the Decree, a legal act of application is not required
• 15 days from the first act of application of the Decree, a legal act of application that involves concrete damages to the rights or legitimate interests of individuals in question is required

For more information on this alert, please contact the authors.

Notes

¹ Published in the Diario Oficial de la Federación on June 7, 2022.