Modifications to the General Provisions Applicable to Regulatory Auditors

DOF: 29/12/2022

MODIFICATIONS to the General Provisions Applicable to Regulatory Auditors

A seal bearing the National Coat of Arms, which reads: United Mexican States.- TREASURY.- Ministry of Finance and Public Credit.- National Commission for the Retirement Savings System.

MODIFICATIONS TO THE GENERAL PROVISIONS APPLICABLE TO REGULATORY AUDITORS

The President of the National Commission for the Retirement Savings System, based on the provisions of Articles 1, 2, 5, fractions II and III, 12, fractions I and VIII, 16 fraction VI, 20 fraction IV, 30, 50, 99, 100 bis, 100 ter, and 100 quater of the Retirement Savings Systems Law; 2, 3, 154, and 155 of the Regulations of the Retirement Savings Systems Law; 1, 2, fraction III, and 8, first paragraph, of the Internal Regulations of the National Commission for the Retirement Savings System, and

CONSIDERING

That pursuant to Article 30 of the Retirement Savings Systems Law, the Regulatory Auditor is the official responsible for monitoring that officials and employees of Administrators and public institutions performing similar functions comply with the external and internal regulations applicable;

That the Regulatory Auditor must carry out the Audit Function, on four fundamental axes: compliance with applicable external and internal regulations; compliance with the Administrator's self-regulation program; protection of workers' interests; prevention of conflicts of interest and misuse of insider information;

That to facilitate the achievement of this objective, it is necessary to make various modifications to these General Provisions applicable to regulatory auditors, as some elements have been detected that could cause confusion and complicate the proper observance of the current regulation;

That as a result of the publication in the Official Gazette of the Modifications and additions to the General Provisions in financial matters of the Retirement Savings Systems, which among other aspects updated the definition of Conflict of Interest, it is necessary to carry out a harmonization effort to avoid divergences in the various regulations governing the SAR;

That it is necessary to flexibilize the mechanism for modifying the Plan of Functions, for which it would suffice to inform the Governing Body of the required modification;

That to simplify the regulatory burden, it is considered necessary to expand the evaluation made by the Auditor of the Vulnerability Matrix, currently every three months, to a longer period so that this tool can mature and more efficient corrections can be made to it if necessary;

That it is necessary to carry out various formal clarifications in these General Provisions, which do not affect the obligations already established and only seek better observance of the regulation and avoid confusion among the regulated, which does not generate compliance costs, has seen fit to issue the following:

MODIFICATIONS TO THE GENERAL PROVISIONS APPLICABLE TO REGULATORY AUDITORS

SINGLE. - Articles 2, first paragraph and fraction II; 7; 9, fraction I; 21, fraction II and its subsection c, as well as the last paragraph; 22 second paragraph and third paragraph; 23, subsection e) and the third paragraph; 36, third paragraph; 37, second paragraph, 38, fractions I, IV subsections c) and d) and X and XIII; 39, second paragraph are MODIFIED, and Articles 38, fractions II and III, all of the "GENERAL PROVISIONS of General Character applicable to Regulatory Auditors", published in the Official Gazette of the Federation on November 29, 2016, are REPEALED, to read as follows:

" Article 2.- For the purposes of these general provisions, in addition to the definitions established by the Retirement Savings Systems Law, its Regulations, the General Provisions establishing the investment regime to which Investment Companies must be subject, the General Provisions on the registration of accounting, preparation and presentation of financial statements to which Investment Companies must be subject, the General Provisions on operations of retirement savings systems, the General Provisions on financial matters of retirement savings systems issued by the Commission, the following shall be understood:

I.

...

II.
Conflict of Interest, that situation in which the personal, family or business interests of an Official, Independent Director, external members participating in committees or subcommittees of Investment Companies, natural or legal persons participating in decision-making or in the operation with Workers' resources, may interfere with their obligation to act in the interest of Workers or may affect impartial performance according to the objective of their functions. It shall be presumed that a Conflict of Interest exists between any participant in the system and another legal person when they belong to the same Business Group, are Related Companies to each other, have Patrimonial Links, or are Related Persons and such condition interferes with their obligation to act in the interest of Workers or may affect impartial performance according to the objective of their functions;

III. to XIII. ... "

" Article 7.- Officials subordinate to the Regulatory Auditor who assist him in the performance of his functions shall report only to him. For this purpose, such Officials shall not provide services in any other area of the Administrator nor in any company of the Business Group to which it belongs. Without prejudice to the foregoing, the Administrator in question shall be directly responsible for acts carried out by them or by the Regulatory Auditor. "

" Article 9. ...

I.
Independence: the actions and determinations taken by the Regulatory Auditor in the exercise of his function shall not be subject to the opinion of the General Director or any other official of the Administrators, only to the shareholders' meeting of the Administrator and the Governing Body;

II. to III.
... "

" Article 21. ...

I. ...

II.
Observation Processes in Operational and Financial matters, which are contemplated in Annexes B and C respectively of these general provisions, which contain the activities of evaluation and preservation of compliance with the Administrator's Self-Regulation Program, and must also consider the following:

a. ...

b. ...

...

c. Carry out the application of the Observation Processes, for the detection and follow-up of Vulnerabilities with the purpose of strengthening and updating the Vulnerability Matrix.

d. and e. ...

III....

Without prejudice to the foregoing and to the Observation Processes that the Regulatory Auditor must include based on what is established in fraction II, he may include additional Observation Processes in his Plan of Functions, supported by the following:

a) The Vulnerability Matrix,

b) Relevant elements related to the development of his function or others that may have an impact on the interests of workers, resulting from non-compliance with internal or external regulations and the Administrator's Self-Regulation Program. "

" Article 22.

...

I. to IV.

...

The modification to the Plan of Functions will not require the approval of the Governing Body of the Administrator; nevertheless, the Regulatory Auditor must inform said Body about the modifications made, in the immediate subsequent session in which this occurs.

The Regulatory Auditor must present to the Commission the modifications to the Plan of Functions within ten business days following the day on which he makes the modification. "

" Article 23. ...

a) to d). ...

e)
Include, at least the name and position of the officials responsible for each process included in the Vulnerability Matrix.

...

The Regulatory Auditor must evaluate the Vulnerability Matrix at least semi-annually, and if necessary, carry out modifications to it that he considers appropriate, informing the Governing Body of the foregoing in the next ordinary session held after the evaluation, and to the Commission on the same day he presents the Monthly Report referred to in Article 37 of these Provisions and corresponding to the holding of the ordinary session in question, attaching for this purpose, the result of his evaluations and, if applicable, modifications, as well as the certification of the secretary of the Governing Body stating the agreement on the presentation thereof.

...

...

...

...

... "

" Article 36. ...

...

In the event that the Governing Body of the Administrator does not attend to or fails to justify the response to the requests received from the Regulatory Auditor, the latter must notify the Commission of such fact within the immediate next monthly report to the date of the period corresponding. "

" Article 37. ...

The monthly report must be focused on reporting the compliance with the Regulatory Auditor's obligations, considering the activities developed and the irregularities detected, during the monthly period in question, without prejudice to the fact that the latter, he reports at any time to the Commission, and must be presented in an orderly, concise, precise and clear manner. The inclusion of each point included in the monthly report must be justified according to its importance and utility, it must be avoided to include information that is not very relevant or that turns out to be redundant.

...

... "

" Article 38. ...

I.
Report on the Vulnerability Matrix in its two sections, operational and financial. In that section, the Regulatory Auditor must inform if there was any variation regarding the main Vulnerabilities and areas of opportunity in the scope of compliance with the internal and external regulations of the Administrators and Investment Companies. Also, the report on the Vulnerability Matrix must consider the following:

a)
The data of the Officials responsible for each process included in the Vulnerability Matrix; and

b)
The detailed description of the steps, strategies and times used by each of the Officials of the Administrator, and even the control measures implemented by it, regarding the attention to the Vulnerabilities identified by the Regulatory Auditor;

II. Repealed;

III. Repealed;

IV. ...

a) and b).

...

c)
The irregularities detected in the administration and operation of the Administrator and its Investment Companies, as well as the preventive and corrective measures adopted and, if applicable, the sanctions imposed for non-compliance with such measures; or the irregular aspects that have been detected; the detail of the follow-up and other additional information referred to in this subsection may be incorporated in an annex document, for which purpose reference must be made to it in this section;

d)
The application and observance of measures imposed to prevent Conflicts of Interest in accordance with what is established in the General Provisions on financial matters of the Retirement Savings Systems;

e). to g). ...

V. to IX.

...

X.
Report of participation in the Sessions of the Governing Body of the Administrator and the other collegiate bodies and Committees of the Administrator and its Investment Companies. In this section, he must include a concise summary of the relevant agreements that have been taken in the collegiate bodies and other committees; as well as the opinions expressed by the Regulatory Auditor.

XI. to XII. ...

XIII.
The actions taken to verify that the Administrator gives attention to the prevention and correction measures resulting from the inspection visits carried out by the Commission. "

" Article 39. ...

The Commission may require the Regulatory Auditor to provide clarifications, reports or additional documentation required regarding the content of his monthly report. "

TRANSITORY ARTICLES

FIRST ARTICLE. These modifications to the General Provisions applicable to Regulatory Auditors shall enter into force on the next business day following their publication in the Official Gazette of the Federation.

SECOND ARTICLE. As of the date of entry into force of these modifications, all general provisions issued by the Commission that are contrary to them are repealed.

Mexico City, December 22, 2022. - The President of the National Commission for the Retirement Savings System,

Dr. Ivan Hilmardel Pliego Moreno .- Signature.

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