Amendment to Mexico's Foreign Trade General Rule that Allows Customs Clearance Through Channels Other Than Those Authorized May Pose Legal Risks

On June 12, the seventh resolution of amendments to Mexico’s General Foreign Trade Rules for 2020 entered into force. In that resolution, several rules were modified, among them Rule 2.4.1., which regulates the “Authorization for the entry or exit of merchandise from the national territory through channels other than the authorized.”

In terms of this customs law and its regulations, the authorization noted in the aforementioned rule should be available to all Mexican legal entities for purposes of customs clearance of goods through a place other than the authorized channel, provided they are up-to-date, in compliance with their tax obligations, and that they can prove the ownership or legal possession of facilities within or adjacent to an international airport, authorized border crossing, port, or railway terminal that has customs services. The relevant authorization may be granted for a period of up to three years, or for the time during which the applicant proves legal possession of the facilities when it is less, and may be extended for up to an equal period.

Even though this customs law and its regulations do not establish any limitation for requesting and obtaining authorization for the customs clearance of merchandise through a place other than the authorized channel, as a result of the modification to Rule 2.4.1., the Mexican Tax Administration Service establishes that in the case of goods consisting of hydrocarbons, fuels, petroleum products, petrochemicals, and biofuels, as well as chemical precursors and minerals, the authorization provided for in the aforementioned rule may exclusively be obtained by productive companies of the State, their subsidiary organizations, and subsidiary productive companies such as Petróleos Mexicanos (PEMEX).

It’s worth noting that the above modification might result in violation of fundamental rights provided in the Mexican Constitution, against the holders of authorizations to carry out the entry or exit of goods through a place other than the authorized channel who will be prevented from obtaining an extension, as well as those companies that intend to obtain an authorization in the future. Additionally, the seventh resolution of amendments to the Mexican General Foreign Trade Rules for 2020 establishes that requests for authorizations or extensions that are currently in process will be resolved according to the modification in question, a situation that also potentially violates constitutional fundamental rights.

Foley attorneys can advise you on the implications and possible defense mechanisms that could be raised when suffering a negative impact as a consequence of the amendment to Rule 2.4.1. Contact your Foley attorney for more information.