General Provisions Governing Self-Correction Programs

DOF: 08/03/2019

GENERAL PROVISIONS GOVERNING SELF-CORRECTION PROGRAMS

A seal with the National Emblem appears on the margin, stating: United Mexican States.- SHCP.- Ministry of Finance and Public Credit.- National Retirement Savings System Commission.

GENERAL PROVISIONS GOVERNING SELF-CORRECTION PROGRAMS

The President of the National Retirement Savings System Commission, based on the provisions of Articles 151, 152, and 153 of the Law to Regulate Financial Groups, Articles 116 and 117 of the Law to Regulate Financial Technology Institutions, Articles 5th, fraction XVI, 11, and 12, fractions I, VIII, and XVI of the Law on Retirement Savings Systems; as well as Articles 1st, 2nd, fraction III, and 8 of the Internal Regulations of the National Retirement Savings System Commission, and

CONSIDERING

That on March 9, 2018, the Decree expediting the Law to Regulate Financial Technology Institutions and reforming and adding various provisions of the Law on Credit Institutions, the Securities Market Law, the General Law of Organizations and Auxiliary Credit Activities, the Law for Transparency and Orderly Conduct of Financial Services, the Law for the Protection and Defense of Users of Financial Services, the Law to Regulate Financial Technology Institutions, the Law to Regulate Financial Groups, the Law of the National Banking and Securities Commission, and the Federal Law for the Prevention and Identification of Operations with Resources of Illicit Origin was published in the Official Gazette of the Federation, through which the Law to Regulate Financial Technology Institutions was expedited;

That based on the Law to Regulate Financial Technology Institutions, this National Retirement Savings System Commission is authorized to issue the general provisions to which the self-correction programs of Financial Technology Institutions, societies authorized to operate with Novel Models, and other persons subject to the supervision of this Commission, in terms of said Law, shall be subject;

That with the aim of consolidating in a single normative instrument the form, terms, and procedures regarding the Self-Correction Programs that persons subject to the supervision of the Commission must observe, it has been decided to repeal the General Provisions governing the Self-Correction Programs applicable to Controlling Societies in terms of the Law to Regulate Financial Groups, published in the Official Gazette of the Federation on September 1, 2015;

That with the object of promoting voluntary compliance with the regulation, through the described normative framework, it is intended to generate discipline in the markets and reduce administrative sanctioning procedures, and

That the Ministry of Finance and Public Credit, through this Commission, has complied with what is established in Article 78 of the General Law of Regulatory Improvement, as well as in Article Fifth of the "Agreement that establishes the guidelines that must be observed by the dependencies and decentralized organisms of the Federal Public Administration, regarding the issuance of administrative acts of a general nature to which Article 69-H of the Federal Administrative Procedure Law applies," with simplification actions consisting of the elimination of two obligations in the General Provisions on matters of retirement savings system operations, in addition to the important benefits that these provisions generate, it has been decided to issue the following:

GENERAL PROVISIONS GOVERNING SELF-CORRECTION PROGRAMS

Chapter I
General Provisions

Article 1.- These provisions have as their object to establish the form, terms, and procedures that Entities and persons subject to the supervision of the Commission must observe, with respect to the Self-Correction Programs they present in terms of the applicable Laws.

Article 2.- For the purposes of what is provided in these provisions, the following shall be understood, in singular or plural:

I.
Commission: the National Retirement Savings System Commission;

II.
Correction: the set of activities that Entities undertake to adjust their operations to the normative framework applicable to them and, where applicable, to prevent future Irregularities or non-compliance;

III.
Entities: the controlling societies of financial groups, Financial Technology Institutions, societies authorized to operate with Novel Models, and other persons regarding which the Commission exercises supervisory powers in terms of the Laws;

IV.
Irregularities or non-compliance: acts or omissions of a continuous or instantaneous nature, that Entities carry out in contravention of the Laws, the sanctioning of which corresponds to be imposed by the Commission;

V.
Continuous irregularity or non-compliance: those whose consummation extends over time, such that their effects continue at the moment of presenting the request for authorization of the Self-Correction Program;

VI.
Instantaneous irregularity or non-compliance: those whose consummation is exhausted at the moment it has been carried out, such that their effects have ceased when the request for authorization of the Self-Correction Program is presented;

VII.
Laws: the Law to Regulate Financial Groups, the Law to Regulate Financial Technology Institutions, or other applicable provisions to the Entities and persons subject to the supervision of the Commission, the non-compliance with which corresponds to be sanctioned by the latter, and

VIII.
Self-Correction Program: the plan that the general director or their equivalent of the Entities presents to the Commission to implement a Correction.

Article 3.- Entities may submit a Self-Correction Program for the authorization of the Commission when, in the performance of their activities, the Entity itself detects Irregularities or non-compliance provided for in the Laws.

Irregularities or non-compliance shall not be the subject of a Self-Correction Program when:

I.
They are detected by the Commission, in the exercise of its inspection and surveillance powers, before the presentation by the Entities of the respective Self-Correction Program, as well as those whose sanction corresponds to be imposed by authorities other than the Commission.
It shall be understood that the Irregularity or non-compliance was previously detected by the Commission, in the case of surveillance powers, when the Entity has been notified of said Irregularity or non-compliance; in the case of inspection powers, when it has been detected during the course of the inspection visit, or corrected subsequently after a requirement has intervened during the course of the visit;

II.
They correspond to the object of an ongoing inspection visit by the Commission and until it concludes;

III.
They correspond to any of the crimes contemplated in the Laws governing the Entities;

IV.
They refer to any of the infractions considered as serious in terms of the Laws governing the Entities;

V.
The compliance with the Laws has been subject to a deadline, such that a Self-Correction Program implies the granting of an extension for said compliance;

VI.
The Entities have consented to their consummation, and

VII.
The Entities have made a recurrent and unjustified use of the aforementioned programs with respect to the same process or fact.

Chapter II
Content of Self-Correction Programs

Article 4.- Entities that request the Commission to authorize the Self-Correction Program must present said program, which must contain at minimum the following:

I.
The mention of the Irregularities or non-compliance committed, indicating in this regard the Laws and provisions that have been considered contravened, as well as specifying the conditions of manner, time, and place in which they occurred;

II.
The detailed indication of the circumstances that originated the Irregularity or non-compliance and if there is knowledge of whether it produced damage or harm to the Entity itself or to third parties, indicating if it has already been compensated. In all cases, the necessary supporting documentation shall be attached;

III.
If applicable, information on the suspension of the action or omission that motivated the contravention to the norm;

IV.
The detail of the activities that will integrate the Correction, which must be aimed at achieving effective regularization and shall be subject to the following:

a)
If the Irregularity or non-compliance is of a continuous nature and, due to its characteristics, the actions constituting the Correction cannot be executed immediately, a detailed schedule must be incorporated that indicates the execution deadlines and the persons responsible for the implementation of the referred activities. Additionally, measures aimed at preventing new Irregularities or non-compliance may be included;

b)
If the Irregularity or non-compliance is of a continuous nature and the activities integrating the Correction can be executed immediately, it is sufficient to indicate the persons responsible for the implementation of the referred activities and the execution deadline, and may also indicate measures aimed at preventing new Irregularities or non-compliance;

c)
If the Irregularity or non-compliance is of an instantaneous nature, the activities constituting the Correction may only be of a preventive nature, with the provisions in items a) or b) above being applicable, as appropriate, regarding execution deadlines and the persons responsible for their implementation.

When various Irregularities or non-compliance indicate that there is a structural problem, the Self-Correction Program must focus on correcting the root of the problem, that is, contain an integral Correction.

In all cases, the activities that will constitute the Correction must be reasonable and maximize the effectiveness and speed of their execution.

V.
The person or area responsible for monitoring the implementation of the Self-Correction Program, including the manner and deadlines for reporting progress to the board of directors and the general director or the organs or persons equivalent in the Entity, as well as to the Commission itself.

The respective request, as well as the draft of the Self-Correction Program, must be signed, the first by the general director or equivalent and the second by the president of the audit committee of the Entity or whoever exercises the surveillance functions. Additionally, the certification by the secretary or minutes of the audit committee must be attached, in which the considerations, recommendations, suggestions, or indications of said committee regarding the program draft are recorded.

Chapter III
Procedure

Article 5.- The Commission shall refrain from analyzing the Self-Correction Program if it falls under any of the circumstances referred to in Article 3 of these provisions, and therefore it must be declared inadmissible.

Article 6.- The Commission shall notify the interested party when the draft of the Self-Correction Program does not contain any of the requirements referred to in these provisions or shall order modifications or corrections if it does not comply with what is established in the Laws or is inadequate to achieve an efficient Correction. The Entity shall have a period of five business days counted from the respective notification to remedy such deficiencies. This period may be extended only once for up to five additional business days, with the prior authorization of the Commission.

If the deficiencies are not remedied within the aforementioned period, the project referred to in the preceding paragraph shall be considered not presented, and consequently, the respective Irregularity or non-compliance committed shall not be the subject of another Self-Correction Program.

Article 7.- The Commission shall have a period of twenty business days counted from the presentation of the request for authorization of the Self-Correction Program or from the presentation of the response to the notice of prevention or of modifications or corrections, to resolve what corresponds. This period shall be calculated from the presentation of the last promotion relative to the request for authorization or from the last response to the notice of prevention, of modifications or corrections.

In the event that the Commission does not issue the respective resolution within the period referred to in the preceding paragraph, it shall be considered authorized in all its terms, for all legal effects that may arise.

Article 8.- The Self-Correction Program must be presented to the board of directors or equivalent organ of the Entity, in the immediate subsequent session to the request for authorization presented before the Commission, which must be accredited to the Commission within a period of twenty natural days counted from the respective session.

Article 9.- The Commission shall refrain from imposing the sanctions provided for in the Laws, for the Irregularities or non-compliance whose correction is contemplated in the Self-Correction Programs that the Commission itself has authorized, and only during the validity of said programs. Likewise, during such period, the statute of limitations for imposing sanctions shall be interrupted, resuming when it is determined that the Irregularities or non-compliance subject to the Self-Correction Program were not remedied or the preventive measures were not complied with, as appropriate.

Chapter IV
Monitoring of Self-Correction Programs

Article 10.- The person or area in charge of the surveillance of the Entity, in terms of the Laws, must monitor the application of the self-correction actions indicated in the respective program.

Article 11.- The Commission may, at any time, verify the degree of progress and compliance of the Self-Correction Program.

If as a result of the reports from the person or area in charge of the surveillance of the Entity, the Commission determines that the Irregularities or non-compliance subject to the Self-Correction Program were not remedied within the established period or that the established preventive measures were not complied with, it shall impose the corresponding sanction, which may increase the amount by up to forty percent according to what is established in the Laws.

Chapter V
Final Provisions

Article 12.- The Entity that intends to modify the Self-Correction Program must present its request for authorization to the Commission, which shall be subject to what is stated in these provisions.

In all cases, the general director or equivalent shall present before the person or area that exercises the surveillance functions in the Entity, in terms of the Laws, the proposals for modification to the Self-Correction Program, in order to incorporate measures aimed at including or modifying actions that help to correct the non-compliance or irregularity in question more efficiently.

Article 13.- In no case shall the application of these provisions exempt the Entities from their obligation to compensate for the damages and harms that, if any, have been caused.

Article 14.- Natural persons and other legal entities, other than the Entities, that due to the development of their activities are subject to the supervision of the Commission, may also request authorization regarding Self-Correction Programs when they detect Irregularities or non-compliance in contravention of the Laws.

The persons referred to in the preceding paragraph must be subject to what is established in these provisions insofar as it is applicable to them, considering their normative regime, mainly regarding who exercises the surveillance functions and the general director or equivalent.

TRANSITORY PROVISIONS

FIRST.- These general provisions shall enter into force thirty days following their publication in the Official Gazette of the Federation.

SECOND.- The "General Provisions governing the Self-Correction Programs applicable to Controlling Societies in terms of the Law to Regulate Financial Groups," published in the Official Gazette of the Federation on September 1, 2015, are hereby repealed.

Mexico City, February 21, 2019.- The President of the National Retirement Savings System Commission, Abraham E. Vela Dib.- Signature.

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