Mexico: Uncertainty in international trade due to the National Guard's new customs related duties

On July 16, a significant number of amendments to various federal laws, as well as new laws on several federal matters, were published in the Federal Official Gazette (DOF).

Among these amendments, those related to public security stand out, some of which have had a considerably restrictive approach on issues related to communications, personal identity, data privacy, and police and criminal investigation authorities.

Among the various publications is the Decree issuing the National Guard Law and amending, supplementing, and repealing various provisions of the Organic Law of the Federal Public Administration, the Organic Law of the Mexican Army and Air Force, the Military Education Law of the Mexican Army and Air Force, the Promotion and Rewards Law of the Mexican Army and Air Force, the Law of the Social Security Institute for the Mexican Armed Forces, the Discipline Law of the Mexican Army and Air Force; the Code of Military Justice and the Military Code of Criminal Procedure.

While it might initially seem that this decree and the laws issued and amended by it have no direct bearing on international trade and customs operations, it is important to mention that, on the contrary, they will have a specific impact on these types of operations.

The recently enacted National Guard Law (LGN) clearly establishes its powers and responsibilities, as well as its functions and structure.

In this sense, within article 9 of the LGN, its functions and powers for the purposes of customs and foreign trade matters are established, the prevention of crimes and administrative offenses in customs and land fiscal precincts, customs sections, booths and customs review points, as well as federal highways, railways, airports, airspace and means of transport on general communication routes, as well as surveillance and inspection of the entry and exit of goods, means of transport and people in airports, customs, fiscal precincts, customs sections, booths and customs review points.

It can be seen that the enumeration of the functions and powers of the National Guard (GN) in foreign trade operations is broad, since it makes no distinction regarding the types of crimes and administrative offenses that could be found under its potential supervision, investigation, and actions to be implemented.

In this regard, the lack of restrictions or limitations on the actions of the National Guard in the verification and prevention of crimes, as well as in administrative violations within customs, fiscal precincts, customs sections, checkpoints, or inspection points, is noteworthy.

A review of its various functions suggests that the National Guard can determine the commission of customs violations and crimes in the course of its activities.

This, coupled with the fact that smuggling (and potentially equivalent smuggling) is considered a crime that may even warrant the application of pretrial detention, may pose a significant risk to importers and exporters of goods, as they will now have to consider the National Guard as a potential customs authority.

Section XXXII of said article may be the most risky in matters related to international trade of goods, since it grants the GN the open possibility to carry out surveillance and inspections on the entry and exit of merchandise and people at airports, customs, fiscal precincts, customs sections, checkpoints and customs inspection points, as well as the handling, transportation or possession of merchandise in any part of the national territory.

The above seems to imply the need for those who carry out operations of any kind, whether import or export through customs or operations with foreign-origin merchandise, to have established procedures in place to demonstrate the legality of their operations, as well as of the foreign-origin merchandise transported within the country.

While it is positive that the National Guard's actions are now specifically addressed in matters related to customs and international trade of goods and their transportation in Mexico, it is important that importers and exporters of goods have clear information about the scope of the authority's functions and possible actions in this area, as well as the ability to prepare the necessary information, documentation, and procedures in the event of being subject to any type of customs or foreign trade verification by the same.

It is important to monitor any potential limitations and restrictions that may be established in regulatory provisions in the near future regarding the functions of the National Guard in relation to this type of operations.