By: Brenda Cordova, Mexico Attorney

On April 20, 2015, the Mexican government published in the Diario Oficial de la Federacion (Mexican Federal Register) its new Reglamento de la Ley Aduanera, or Regulations to the Mexican Customs Law. It supplements the Mexican Customs law, published on December 2013. This new regulation consisting of 249 articles became effective on June 20, 2015, and abolishes the previous one consisting of 198 articles. Some of the main amendments include:

• The use of the Electronic Customs System, which private entities are required by law to use when submitting information to Customs.
• The ability to use a Mexican legal representative in lieu of a licensed Mexican Customs Broker (MXCB). Because the pool of MXCB is relatively small, Importers may now designate a Mexican legal representative to assist with clearance. While these representatives must comply with various requirements, these requirements are not as strict as those for an MXCB. This should make customs clearance services more competitive in Mexico.
  • A new section for the different padrones (lists controlled and supervised by MX Customs for importers, specific importers and exporters) was inserted in this regulation. One of the new requirements is that parties included in a padron must implement the use of electronic tools. This change was made to promote modernization and ease the burden of cumbersome customs procedures.
• Special new rules that liberalize certain rules for the IMMEX (Manufacturing, Maquiladora and Exportation Services Industry). Some of the materials an IMMEX imports into Mexico may not be transferred to other companies in the same condition as imported i.e., when no transformation, manufacturing or repair has occurred. However, now an IMMEX categorized as a service provider may nevertheless make this transfer. Additionally, the new regulations state that in some cases, the manufacturing, transformation, or repair can be performed by third parties, as long as electronic or digital notifications are submitted to MX Customs reporting the name, tax ID number, and address of the parties involved.
• The new time limit for goods to be in a Deposito Fiscal, or fiscal deposits, is up to 24 months. These are bonded warehouses where goods are physically present in the Mexican territory, but remain under customs control until they definitively enter or leave the Mexican territory.  In the past, goods could be stored there as long as the owner wanted.
• A new concept unveiled for the automotive industry is the Automotive Fiscal Deposit. These are bonded warehouse for the manufacturing and assembly of vehicles.
  • Applicants to these two deposits must comply with certain new requirements, such as maintaining proof of the legal ownership or possession of the land, as well as ensuring adequate equipment and technology is utilized for the submission of electronic data to MX Customs. Also, the authorization to operate a deposit is valid for 10 years, and an additional 10 year extension can be requested when the company is in compliance. Non-compliant deposits will be cancelled.
• An expansion of permissible locations for the establishment of a Recinto Fiscalizado Estratégico. A Recinto is similar to a U.S. Foreign Trade Zone where Mexico goods are manufactured, transformed, or repaired in order to be returned or exported abroad. In the past, Recintos could be located inside or near a location controlled by MX Customs. The new regulation states that Recintos can be located within the boundary of any MX Customs checkpoint but it also must be within a developed strategic zone. These zones consist of industry sectors specializing in the production and trade of goods and services for exports and re-export, aimed to attract investment and promote economic development of a region.
• Certain recordkeeping burdens have been eased in that if a customs inspector confirms that the pedimento (i.e., one of the key documents required for customs clearance) was previously submitted electronically, then, the importer/exporter is no longer required to have a hard copy of such document.
• Also, the pedimento can now be amended as many times as needed. This depends on the data and information that needs to be corrected, and the time when it was completed. Normally, it can be completed any time before the importer proceeds with the automated selection mechanism, which is the time when the importer goes through inspection. The amendment may be made by filing an electronic “pedimento de rectificacion“, and paying the applicable fee. When filing the amendment, if importers/exporters find errors resulting in a credit on their behalf, they may request that the credit be applied towards any outstanding balance.
• As a general rule, the amount of time that a customs inspection can last has been limited to no more than 5 days. Further, the officers must prepare a detailed record of events (acta circunstanciada). After 5 days has expired, and if MX Customs has NOT completed/finalized the inspection procedure, MX customs may NOT impose any legal action against the importer/exporter such as a monetary sanctions or seizures.
• Goods confiscated by Mexican authorities other than customs for trade related violations must now deliver those goods to a MX customs facility. However, the new regulation, also clarifies that MX Customs shall never receive goods confiscated by MX criminal authorities.
  • Provided owners of confiscated goods prove legal ownership and the legal status of the goods, they may recover the confiscated goods. Otherwise, the Consejo Asesor (Advisory Board) will decide where to send the goods.
• One of the most critical changes involves valuation. Importers are now required to provide their MX Customs Brokers, or their legal representative, with a value manifest that assists in determining the value of goods. This official value manifest includes: information about the importer, the formal business relationship with the exporter/supplier, valuation method, and description of the goods, as well as other data. The new regulation requires importers to attach to this manifest the following documents:

1. • commercial invoice
   • bill of lading, packing list, airway bill or any other transportation documents
   • evidence of origin and place of export, such as a certificate of origin issued by the exporter or producer.
   • bond
   • payment of goods (electronic transfer or letter of credit), including negotiable instruments or any other means to provide evidence of payment.
   • contracts between the supplier and importer.
   • evidence of incremental costs, when paid or furnished with no additional charge by the importer (and the amount is not included on the price paid), such as commissions, packing, transportation, insurance, parts, tools, molds, trademarks, among others.
   • any other information or documents needed in order for MX Customs’ to determine the assessed value of goods.
   • The current format of the new value regulation requires that the importer present all of the documents together. However, because each importer handles their operation in a different manner and won’t necessarily have all of the above mentioned documents, MX Customs will be flexible with its enforcement. For example, for those companies buying/selling under open account terms, the requirement of proof of payment can be evidenced with other documents such as purchase orders or a business contract (as long as there are clear written terms providing enough information to determine the value of the goods).
   • In recognition of the burden this new value rule places on importers, Mexican Customs recently extended the enforcement deadline to January 15, 2016. Due to its complexity, it is possible that Customs may issue another extension, or even abolish these requirements.

• In another new development, MX Customs may have grounds for rejecting the declared value by the importer.  For example, when the importer:
  • refuses a Customs inspection
  • does not maintain applicable records
  • does not file tax reports
  • when documents or information are unavailable regarding the declared value to MX Customs
  • The basis upon which appraisement is made is not in accordance to the law
  • The price paid, or payable, cannot be confirmed
  • The foreign supplier states he did not sell the goods to the importer, did not issue the invoice, or that his invoice was altered. MX may contact foreign suppliers and review the documents, and if MX customs finds discrepancies, the value will also be rejected
  • Maintains customs and fiscal documents with data/information that do not match and that impacts or alters the declared value.
  • In case Mexican Customs rejects the declared value, the importer may face legal charges such as monetary sanctions or fiscal fraud, among others.
• Finally importers bringing goods into Mexico for consumption (importacion definitiva) that turn out to be defective, or with specifications different than those agreed upon between the seller and buyer may now return them abroad and request a refund of import duties previously paid at the time of import. This must be done within specific times following the date of importation into Mexico.