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Currently those companies with IMMEX Program that need to import on a temporary basis merchandise listed in Annex II of the IMMEX Decree [1], are obliged to secure an extension of its IMMEX Program in order carry out the temporary import of such goods.

On the other hand, companies with IMMEX Program that have secured Registration in the Companies Certification Integral Scheme, in the modality VAT (and with authorization to temporarily import merchandise classified in the tariff codes listed in Annex II of the IMMEX Decree and/or Annex 28 of the General Foreign Trade Rules ("GFTR") are exempted from the obligation to extend their IMMEX Program to carry out temporary importation of merchandise listed in Annex II of the IMMEX Decree.
 
Amendment Project to the IMMEX Decree and the Foreign Trade General Rules and Criteria issued by the Ministry of Economy ("FTGRC")
 
On October 25 and 26 of this year, the Ministry of Economy published in the web page of COFEMER [2] the following documents:

Project of Decree to modify the IMMEX Decree, through which, among other important topics, the authority adds a section V to article 5 and eliminates section II of article 6 from the current IMMEX Decree, in addition to the inclusion of tariff codes of cooper and lead to Annex II of the IMMEX Decree (http://www.cofemersimir.gob.mx/portales/resumen/46250); and

Amendment to rule 3.3.1. of the FTGRC [3] through which the authority sets forth the exception criteria in order to waive the obligation of extending the IMMEX Program to carry out temporary importation of merchandise listed in Annex II of the IMMEX Decree.
http://www.cofemersimir.gob.mx/portales/resumen/46258
 
Implications for IMMEX Program

 
If these amendments are applied as above mentioned, the IMMEX companies with VAT Certification will no longer have the benefit of waiving the obligation of extending their IMMEX program to import on a temporary basis the merchandise listed in Annex II of the IMMEX Decree, therefore in order to keep importing such merchandise, they will have to extend their IMMEX Program.
 
It is important to mention that the requirement to secure the extension of the IMMEX Program in order to temporarily import merchandise listed in Annex II of the IMMEX Decree are complex and in some cases hard to meet. This could represent an obstacle for IMMEX companies to carry on business as usual.
 
Only companies which fit in any of the exceptions set forth in rule 3.3.1 of the FTGRC will be able to keep waiving the obligation of extending their IMMEX Program. Some exceptions are the following:
  
I. IMMEX Companies that:

a) Have a Registry of Auto Motor Industry,  
b) Have an approval from Ministry of Communications and Transportation as part of the aeronautic industry, [4]
c) Are considered as Maquiladoras for tax purposes
d) Have had at least 2,000 workers in the last 3 years.

II. Are direct suppliers of the companies listed in point I  above
 
III. Are direct suppliers of companies listed in point II above.
 
IV. Are direct suppliers of companies listed in point III above.
 
V. Have had at least 700 workers in the last 6 months.
 
VI. Have machinery and equipment or a real estate property with a value of at least 50 million pesos;
 
VII. Have been affiliated during the last 3 years to any business chamber [5] and have had at least 250 workers in the past 6 months;
 
VIII. Have been affiliated during the last 3 years to any association of exporting companies that have authorization by the Tax Administration Services to render data pre-validation in terms of article 16-A of the Customs law, which have at least 350 maquiladora companies affiliates and have had at least 250 workers during the last 6 months.
 
IX. Be listed on international stock exchanges and financial markets in terms of article 16-C of the Federal Tax Code.
 
Companies that are part of a corporate group in which one of the entities complies with the above mentioned requirements, will be able to apply the exception, given that they demonstrate that are indeed part of the same group in the terms and conditions set forth in rule 3.3.1 of the FTGRC.

It is very important to mention that the amendment project of rule 3.3.1 mentions that IMMEX companies will only be able to apply the exceptions by using the workers rule, if: (i) workers are registered before the Mexican Social Security Institute ("IMSS"), (ii) have a outsourcing structure in terms of articles 15-A to 15-D of the Federal Labor Law and the outsourcing company has all its workers registered in the IMSS.
  
In order for the Ministry of Economy to verify if indeed the IMMEX companies fit in the exceptions above mentioned and therefore are not obliged to extend its IMMEX Program to keep importing in a temporary basis merchandise listed in Annex II of the IMMEX Decree, it will be necessary to file before such Ministry, the information and documentation with which the company evidences that the exception is applicable. However the verification or authorization procedure is not yet structured.
 
Finally, Transitional Article 2 of the Amendment Project sets forth that the certified companies [6] that file information in the terms explained in the above paragraphs may import merchandise listed in Annex II of the IMMEX Decree in a quantity equal to or less than the amount imported on the prior month, until the Ministry of Economy verifies the information.
 
How can we help?

Even when there is not an exact date when this new regulations will be published in the Federal Official Gazette, it is highly advisable that the IMMEX companies review in detail its operation and determine if such amendments will affect its operations, not only current operations but considering that in the future they might need to import merchandise listed in Annex II of the IMMEX Decree.
 
We are glad to help you with the analysis of your current situation, as well as help you determine the implications of these amendments in your temporary import operations.

[1] Decree for the Promotion of the Manufacturing, Maquila and Exportation Services Industry.
[2] Regulatory Improvement Federal Bureau
[3] Official resolution by means of which the Ministry of Economy issues the Foreign Trade General Rules and Criteria.
[4] Ministry of Communications and Transportation.
[5] Set forth in accordance with the Law of Business Chambers and Confederations.
[6] Companies that have an IMMEX Program and a VAT Certification or registration in the Certified Companies Scheme, VAT modality with authorization to import merchandise to import Annex II of the IMMEX Decree.
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