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NUMBER 3   JANUARY - JUNE 2005

    THE "OFFICIAL MEXICAN NORM" IN THE MEXICAN NORMALIZATION SYSTEM*
    Carla HUERTA OCHOA**

    Original Text (Spanish) PDF

    SUMMARY
    I. Introduction and approach to the problem. II. Legal nature. III. On the content of the OMNs. IV. On the constitutionality of the OMNs. V. Precedents of the OMNs. VI. The Official Mexican Norms. VII. The voluntary norms. VIII. Emergency norms. IX. Norms of reference. X. Conclusions.


    I. INTRODUCTION AND APPROACH TO THE PROBLEM

    Official Mexican Norms (OMNs) have acquired in the last decade a great importance in our legal order; nevertheless, they cannot be called a fashion because technical norms have been issued before in our country. In fact, while I was doing some research on the legal norms in force in the Mexican legal system, I realized that this kind of norms exist more or less since the early twentieth century. What is certain is that in the last decades, this kind of regulation has proliferated in all the areas with diverse aims and regulating very different situations. An important difference between the first technical norms and the current ones is that the older ones were issued by the President of the Republic, in use of the regulatory power provided in article 89, fraction I, of the Mexican Constitution.

    It should also be remarked, that while laws that regulated what today are denominated OMNs did not exist, these were issued with a constitutional provision as fundament. Modern legal relations are increasingly complex and the President cannot in person issue all the acts that allow "to provide to the exact observance of the laws in the administrative sphere", this has evidenced the need for the federal public administration to aid him in his labor. The above-mentioned situation has led us to reflect on diverse problems of constitutional order, what the relation between the federal public administration and the Executive Power is like, or if the legislative functions of the President of the Republic can be delegated in organs of the federal public administration be it by means of law or interior regulations.

    Speaking about OMNs represents a major challenge in comparison to what at first sight it may appear, provided that it is not just a question of applying and fulfilling them. The real problem resides both in the nature of the above-mentioned legal provisions, which has an influence in their obligatory character, as well as in the increasingly frequent remission of competence done by laws and regulations to the OMNs.1

    OMNs are a legal instrument that is used every day with more frequency, we have got used to them without questioning their existence, their legality and if indeed, they perform their function, to the point that there have hardly been studied.2 The proliferation of OMNs in our legal system has produced a slightly unmanageable quantity of general legal rules that fulfill all possible purposes. This overabundance of OMNs has not only become an obstacle to the certainty of the legal relations but, as regulative policy, it is contrary to the current deregulation program.

    One of the main reasons for the existence of OMNs is of practical nature in spite of the procedure regulated in the Federal Law on Metrology and Normalization (FLMN). The decision to regulate a certain situation by means of an OMN is fundamentally a matter of time, an expedite procedure that resides in the public administration should be the answer. Nevertheless, if we add up times provided in the FLMN, we see that it takes more than 200 days before the norm is published.3 This is so because a scheme of participation and consultation was introduced which allows the collaboration of the individuals, principally those affected, whom the law names "interested parties". This is a positive characteristic in the production of legal rules, even when the opinions or commentaries that they present do not have any binding force. In other words, OMNs can come into effect such as they were published for information and knowledge of the public.

    II. LEGAL NATURE

    Let us begin by making some terminological precisions. When we speak of a norm, in a wide sense we refer to any rule of conduct of obligatory observance. In strict sense, the term refers to legal norms issued by the competent authority and are created in conformity with a certain legal order, and whose compliance can be demanded even against the will of the obliged subject.

    The previous definition presupposes the existence of a positive legal order, the hierarchical relation between its norms, and that the determination of their validity depends on one hand, on the application of the procedure that establishes its creation, and the adequacy of its contents to the superior norm and to the supreme norm, on the other.

    The question regarding the legal nature of the OMNs is an important practical matter, since the relevance of their classification resides in the determination of their rank and binding and derogatory force, and in the alternatives and legal remedies that the law provides.

    Traditionally, the determination of the type of legal acts issued by the constitutional organs are identified in conformity with the criteria of the issuing organ, its formal aspect, and by the type of function in conformity with which they are issued, which is called the material aspect.4 Nevertheless, this theory that during many years has managed to answer diverse questions and allowed to identify the legal nature of legal acts, does not solve the problem of the obligatory nature of the norms, nor of the possibility to determine the form in which they can be enforced; it has been therefore replaced by the explanatory system that refers to the hierarchy of the norms and the assignation of material competence.5

    If we want to analyze the OMNs, we must distinguish the legal norm that is characterized for being general, abstract and obligatory, from the administrative act that on the contrary, is particular, since it refers to specific subjects and situations and is generally issued by an administrative authority. The apparently paradoxical situation derives from the fact that the OMN is created by the public administration, which makes it formally an administrative act, but from the material point of view it is a general legal norm.6 There could be therefore some uncertainty about its real nature; nevertheless, I think that there is no doubt that the OMNs are legal norms in a strict sense.

    The above mentioned distinction is based on the principle of division of powers regulated in our Constitution, which must be understood as distribution of functions, since it does not mean that there is a need of three constitutional powers to exercise the functions of the State and that only in this way, by means of establishing limits and controls, a balance among them is achieved, since the term "power" must be understood not as organ, but as a function. That is to say, that the distribution of functions is done among the diverse organs of the State, there have been traditionally identified three functions: the legislative, the administrative and the judicial; even when the legal theorists find certain difficulty in distinguishing between the last two, since both refer to the production of individualized legal norms, unlike the legislative function that implies the creation of general legal norms. In other words, as we can verify, in the Mexican Constitution diverse constitutional organs that perform the functions of the State are regulated, which can nevertheless not be classified as part of any of the organs that represent the traditional scheme of division of powers, that is, the Legislative, the Executive or the Judicial Power, but that independently of them, exercise their functions in an autonomous way. This shows a rupture in the traditional notion of division of powers and reaffirms the modern conception of functional distribution.

    Since we consider that the OMNs are the result of the exercise of the legislative function, we will concentrate in their study. The legislative function understood as the power to issue laws in accordance to a special stipulated constitutional procedure corresponds in the first instance, to the Legislative Power. Nevertheless, the president of the Republic exercises the above mentioned function, named "regulatory power", which empowers him to elaborate the regulations that develop and specify the laws issued by the Congress of the Union, as well as decrees, agreements and orders among other kind of norms.

    The regulatory power is inferred by interpretation from the first fraction of the article 89 of the Mexican Constitution; interpretation which can lead us to diverse conclusions that could even seem to be contradictory. The intention of the present reflection is not by any means to deny the existence of the regulatory power, which in any legal system makes itself necessary for reasons of agility, to develop the norms that the public administration has to apply, but also a mechanism of counterbalance of the functional distribution among the organs of the State. The purpose here, is rather to try to delimit the scope of the above mentioned power, because the Constituent Power remained silent in relation with the exercise of this function, since instead of indicating it expressly, it limited itself to establish that the president is authorized and obliged (due to the double character of the content of the competence norms, that is not only a facultative or permissive norm, but it also establishes an obligation), "to promulgate and enforce the laws issued by the Congress of the Union, providing in the administrative sphere for its exact observance". It the last part of this paragraph, we find the power of the president to issue acts of legislative nature, that is, general legal norms.

    From this statement we can also infer the limits of the regulatory power because, these regulations that will have to provide to the exact observance of the law depend of the law of the Congress, and this can only mean that the regulations must develop the law and that they do not have an autonomous existence.7 The laws establish the general guidelines and the regulations specify the obligations and procedures for the public administration to apply them. For this reason is has been traditionally considered that the regulations cannot establish limitations to rights and freedoms, such as obligations or sanctions, which have not been previously regulated in the law.

    The obligation of the secretaries of State or of the head of administrative department to countersign the laws indicated in the article 92 of the Constitution, refers to regulations, decrees, agreements and orders of the president, can be interpreted as a limitative rule of the type of norms that can be issued by the president, or, as the only type of norms that, being issued by the president in exercise of the regulatory power that need a countersignature. This second interpretation seems more adequate with the further development of a contemporary legal order, which in nature is dynamical, since it permits other norms, like the technical norms for example, to be issued by means of the above mentioned power, that because of their scope, do not need to be countersigned.

    III. ON THE CONTENT OF THE OMNs

    In legal theory we could find what, in a customary way, is believed to be the due content of the law, of the regulations and of other types of norms is, even if there is no real agreement on what kind of norms must develop what specific type of contents, by virtue of which, I would like to speak about a constitutional reserve, a law reserve and a regulatory reserve.

    The concept of "constitutional reserve" is probably the least common of them all. Nevertheless, the Constitution can not only prescribe any content by virtue of its character of primary source, but also forbid its limitation or development. Ever since the Declaration of the Rights of Man and of Citizen of 1789, the fundamental rights and the division of powers are recognized as basic constitutional contents, that means, that the organization of the State and the government could be considered as part of the constitutional reserve. By virtue of this reserve, we could sustain that in order to be able to establish limitations or exceptions to the constitutional norms, these would have to be included in the Constitution itself, because if any other norm hierarchically subordinated to the fundamental norm tried to modify any constitutional norm, it could be repealed and declared unconstitutional since it contravenes its contents.

    The origins of the concept of "reserve of law" can be found in the monarchic dualism and the doctrine of the law as expression of the general will. Nowadays it requires a new basis that guarantees the legislative procedure preventing the legislator from delegating powers to regulations, since in systems as ours, the Legislative as well as the Executive Power are representative, the first one of the people, the second one of a majority.

    The democratic principle that lays the foundations for the existence of the Congress and its representation becomes an argument in favor of the reserve of law. Provided that it is formed by representatives of the people it can determine the way in which it decides to obligate the Congress, even when we know well that the relation between electorate and the members of the Congress is not that of a mandate.

    The reserve of law means that certain matters are "reserved" to its development by the legislator, in other words, they are excluded from the regulatory power. It is considered that any mandate to the legislator8 becomes an obligation for the Legislative Power to regulate the matter as the Constitution determines, preventing its regulation by the Executive Power. Nevertheless, this can only be true in a system in which a regulatory reserve exists, as a prohibition for the legislator to develop certain contents reserved to the Executive, or, in those in which the Legislative Power is authorized to delegate the legislative function.9

    The mandate to the legislator only establishes an obligation of development of the law in conformity with the Constitution, within a brief term we might say. Nevertheless, this has not been solved in a clear way by the legal order, the jurisprudence or the norms; its breach is principally due to the absence of a sanction.

    Perhaps by means of interpretation we might deduce from the legal system a generic reserve of law, in the sense of a prohibition of transferring to the regulations the exercise of legislative functions that could imply limitations to the exercise of individual rights, such as prescribing obligations or sanctions.10

    The generic reserve of law can be inferred from the absence of a "reserve of regulatory law", by virtue of which, all the contents of the Constitution must be developed by laws issued by the Congress, even if the obligation of its development by the legislator has not been expressly regulated. It can also be deduced from the absence of concrete reserves of law, and therefore understood that the will of the Constituent Power was that all the constitutional norms are developed by law.

    Traditionally, the doctrine and the jurisprudence11 have indicated that by virtue of the principle of subordination regulations depend on laws for their existence and content. Given that their function is to develop a law, they cannot establish obligations that have not been previously regulated by law. In other words, they cannot regulate conducts that are not established in the superior norm, nevertheless, it has been accepted that when it is not a matter of limiting the sphere of individual freedom, situations such as to grant rights or permissions are accepted. On the other hand, the law cannot regulate to the detail all the procedures of application of the norm, for this reason it corresponds to the Executive the specific development of the form of application of the law.

    Some authors consider that there is an exception to the above mentioned principle in our legal order, which has been interpreted as an authorization for the existence of autonomous regulations. It is considered that the provision in article 21 of the Constitution regarding police and government regulations authorizes the Executive Power to issue regulations even if there is no law to sustain its validity. Nevertheless, it is not very clear if it is a question of a regulatory reserve. I consider that nothing prevents the Legislative Power from issuing a law that establishes sanctions on this subject matter, whose application could be later on regulated by the Executive, because article 21 establishes an authorization that does not need to be interpreted as a prohibition for the Congress to issue a law. It can be interpreted in this sense because the Constitution only refers to the competence of the administrative authority for the application of sanctions of the infractions to such regulations. It does not seem to establish an exclusive legislative capacity that creates a limitation beyond doubt for the Legislative Power, since "application" refers to the individualization of the norm and not necessarily to issue it. Therefore, the supposition that police and good government regulations could exist independently from the law is based on a restrictive and erroneous interpretation.

    In order to affirm that in our Constitution exists a law reserve in strict sense, we must assume the validity of the principle of legality, which means not only subordination of the acts of authority to the legal order, but also constitutes a limitation of its functions, which is understood as a prohibition to perform any act for which they are not explicitly authorized.12 From this principle we can derive a limitation for the organs of government to impose obligations or sanctions when they are not previously established in a law.

    From the above-mentioned principle we can also deduce, the prohibition to delegate the legislative faculty, since the Constitution should expressly authorize such a delegation, because it would constitute an exception to the principle of legality. By virtue of this principle, the attributed function must be exercised by the authorized organ, which in case of not being expressly authorized or of not having the legal authority to delegate its functions, it would be considered incompetent and therefore invalid.13 In consequence, if the Constitution does not provide the possibility to delegate, it is not possible to do it by law to the federal public administration, whose ties to the Executive Power are not clearly established by the Constitution but by the Organic Law for the Federal Public Administration.

    Nowadays we can find an express law reserve established by the Federal Law of Administrative Procedure in relation with the procedures of the federal public administration, to be found in its article 15 that establishes that the authorities may not demand more formalities that the ones expressly regulated in the law, in virtue of which the regulatory power is limited.

    IV. ON THE CONSTITUTIONALITY OF THE OMNs

    The Official Mexican Norms, in spite of being a kind of legal norms that are every day more common and accepted since the widespread attitude is of obeying without questioning them, many questions about their legal nature and function in the Mexican legal order, its binding force and even about its constitutionality remain open.

    The Constitution can be understood as a set of norms to which the creation of norms by the superior organs of the State is subject. This makes it necessary to reconsider the criteria of validity of the norms, and in this sense we could establish two levels of determination of the validity: 1. The formal level: where the validity of the norm depends on the compliance with the process of norm creation established in the superior norm, and that it is issued by the competent authority, and 2. The material level: where the content of the inferior norm has to be coherent with the content of the norms to which it is hierarchically subordinated.

    By speaking of hierarchy, we assume the existence of a certain structure of the legal order where the validity of any norm, so much in the formal as in the material sense, depends on the Constitution, and this allows us to consider it as a presupposition of the conception of the Constitution as supreme norm. We might say that the hierarchy is the criterion that defines the Constitution, in other words, the norms are qualified by the position that they occupy in the legal order, not their content. For this reason we might say, that the principal addressee of the constitutional norms are the legislator and the organs that apply it, not the individuals.

    The formal hierarchy serves to assign different ranks to the norms according to the form that the norm adopts, independently of its content. In this sense, they constitute rules of validity and a derogatory effect is produced in a case of contradiction between the lower and the superior norm. The derogatory effect of the superior norm is called "active force" and its power to resist a lower norm is called "passive force". When a collision between norms of the same rank occurs, it is clear that they all have the same active force, but lack any passive force, and can be therefore derogated. The derogation is a legal, not logical, consequence of the contradiction between the superior norm and the lower norm, and we must keep in mind the general principle that states that only an act of the same or superior rank and source can derogate another legal act.14

    It is relevant to make the distinction between rank and force of law of the norms, in order to better understand the potential results of the collision of norms. The idea of rank refers to the position that a norm occupies in the legal order, that is, to its formal hierarchy; the force of law refers to its derogatory force and resistance the norms and it derives from the subject matter that it regulates, that is, of the delimitation of the competence to regulate certain matters.

    This criterion of distribution of material competence can be regarded as a criterion of horizontal organization of the system of the sources of law that complements and corrects that of formal hierarchy, which answers to a criterion of purely vertical arrangement. It means basically that the relation between norms depends on its content, and this materializes thru the principles of distribution of competence and the reserve of law. In such a way that if we attend to the above mentioned criteria, the validity of a norm depends not only on its hierarchy but also on the existing relation between the content of the norms, which must serve to solve the cases of conflict between norms of the same rank that have reserved subject matters.

    We could, therefore, speak of a formal unconstitutionality and about a material unconstitutionality. The first kind of unconstitutionality derives from a defective process of creation of the norm, in the second case it refers to its content, when the content of the OMN has exceeded the function of the norm by not restricting itself only to technical questions.

    The reasons for the official norms to exist in our legal order are the need to regulate questions of highly technical specificity, which might change in a constant and fast way. This kind of dynamic needs of a prompt response that evidently neither legislator nor the President as head of the Executive Power can give on time, it is for this reason that this task has been entrusted to the agencies of the public administration. However, and in spite of the fact that the existence of technical norms in our system is nothing new, we must remember that there are in our Constitution certain limitations for the exercise of the legislative power. In other words, the regulatory power provided in the article 89, fraction I, has been given to the president, and there is no provision in the Constitution that indicates that it can be delegated to the public administration.

    It could be thought that the above mentioned problem is overcome by the FLMN, which attributes expressly to a certain agency the above mentioned legislative function, but I consider that in spite of the "legality" of the OMNs, we should still question the constitutionality of this delegation done by the legislator that breaches the principle of division of power provided in article 49 of the Constitution, and whose only exceptions have to be regulated in the Constitution.

    In the FLMN, the legislator delegates to the public administration the faculty that the Constituent Power conferred to the president of the Republic, assuming this way the competence of the constitutional reform organ provided in article 135 of the Constitution. The above mentioned faculty is attributed subsequently to the General Direction of Norms by the Interior Regulation of the Secretary of Economy, and in this case operates as a direct delegation of the regulatory power of the president to the director general of norms. This situation has produced three problems: 1) the president is not, we insist, constitutionally authorized to delegate the exercise of the regulatory power either total or partially, and neither is the legislator authorized to delegate the competence constitutionally attributed to other organs 2) the legislator delegated a legislative faculty to the Secretary and was assigned to a general director by means of an interior regulation, and 3) the legal basis of interior regulations is the Organic Law for the Federal Public Administration and not the FLMN, it is therefore not in its competence to regulate the distribution of the competence of the President.

    We also know that the OMNs do not become administrative acts simply because they were issued by agencies of the federal public administration, we must also take their content in consideration to know more about their legal nature. We could say that they are technical rules that direct the subjects in general, and consist of abstract and impersonal provisions, we are therefore speaking about authentic general legal norms. Nevertheless, we must not commit the mistake of thinking that the OMNs can therefore establish rules of conduct, since this it is not its nature.15

    The object of the OMNs is to regulate technical issues, to establish technical specifications of a high degree of precision to enforce the obligations established in the regulations or in the law. For the same reason, their function is not, nor can it be, to regulate any provision of the law, they can neither establish obligations for the individuals nor grant rights or, permissions; they can only make reference to obligations provided in laws and regulations and technically specify them.

    Perhaps because of the extent of the definition of the OMNs given by the FLMN, a wide universe of these norms exists and in many occasions they have been used as authentic instruments of regulation, when they should have only specified technical issues. We could finally question if the existence of the OMNs and if the reforms to the FLMN meet their objectives, especially this last ones which were justified in order to deregulate this specific area.

    V. PRECEDENTS OF THE OMNs

    The Law on Weight and Measures of May 15, 1928, as well as its regulations did not regulate any provisions on normalization. The above mentioned law and the Law of Industrial Norms of December 31, 1945, were derogated by the General Law of Norms of Weight and Measures. In this law one could find a chapter on technical norms and their classification, which delimited the provisions that regulated the general system of weight and measures and the other technical specifications of the Secretary of Industry and Commerce16 for "industrial products". It classified them under norms of weight and measurements and industrial norms, and they could be either mandatory or "optional". The first ones regulated the system of weight and measures and the industrial norms dealt with technical prescriptions that could affect the life, the safety or the integrity of the persons and those indicating the merchandise object of exportation. From the compliance with the optional procedure depended the authorization for the utilization of the official seal of guaranty. The norms were also classified by their object in norms of nomenclature, of functioning, of quality and norms for the methods of official tests, all these were regulated as authentic technical rules.

    The Federal Law on Metrology and Normalization (FLMN) published in the Diario Oficial de la Federación, (the Official Newspaper of the Federation), the 1st. of July, 1992, intended to uniform the procedures of normalization and measurement, establishing uniform methods that would make it possible to overcome the problems of discretion and legality that persisted in the law of 1988. The current law has been reformed three times: on December 24, 1996, in order to modify the competence of the Secretary and to change the procedure of modification and derogation of the OMNs, which was again modified with the reforms of May 20, 1997 and on May 19, 1999 to modify article 13.

    These reforms were part of the national program of deregulation and had also the purpose of eliminating some inefficiencies of the law that had been perceived in the last years. But the real answer to the problems that the application of this law was facing, would have been better solved by issuing the regulation of the LFMN, since all the regulations on this matter were derogated when the former law was derogated. The regulation of the FLMN was finally issued on January 14, 1999, before the third and last reform to the law.

    The law mentions different types of norms among which we may find the Official Mexican Norms, the Mexican norms, the emergency norms and the norms of reference, which we will study next.

    VI. THE OFFICIAL MEXICAN NORMS

    1. Definition

    Provided that legal doctrine has not yet produced a definition of OMNs it can only be constructed from its nature or its regulation; in the first case, as was mentioned before, they are legal norms of technical character, in spite of being issued by agencies of the public administration. According to the law, they are technical norms whose object is to uniform certain procedures, products or services in order to protect life, safety and the environment.

    The definition of Official Mexican Norm was ambiguous in the FLMN in l992,17 since its article 3, fraction X, established such a vague concept that almost any thing could fit in it, distorting in this way the sense of the technical norms. The reform to the law of 1997,18 although unfortunate for what to legislative technique refers, seems to restrict the concept to "technical regulations of obligatory character that conform to the purposes established in article 40".

    Nevertheless, the last paragraph of article 40 of the FLMN repeats the same mistake of the previous article 3, in its second paragraph, by making it possible to issue different types of obligatory standards of administrative character with form of OMN, as long as they follow the same procedure provided for the OMNs. By making a systematical interpretation of articles 3 and 40, this provision has to be understood in the sense that the content of this kind of administrative standards has to be of technical order to be issued as an OMN. Otherwise this rule would allow the public administration, to make obligatory any type of regulation by simply following the procedure prescribed in the LFMN.

    The risk of a accepting a different interpretation, would be to transform the OMN into obligatory rules of behaviour directed to the people in general, and issued by the administrative agencies, since it could become the ideal instrument to solve all the problems that need a prompt answer without bothering the President or the Congress. It is important to underline that the intention of the reform of May 20, 1997, was not by any means to legitimize in a legal way the OMNs, since supposedly this objective "was achieved" in 1992 with the promulgation of the FLMN. This law intended to limit the discretion of the authorities that were issuing the OMNs and to delimit the sphere of competence of the administrative authority, in order to increase the legal certainty for the individuals by regulating a procedure that allows the control of its formal validity. The explanatory statement of the reform to the bill does not indicate the reasons for the modification of articles 3 and 40, and it turned the former second paragraph of article 3 into a formal reason. In other words, it is not the object what defines the OMN as such, because by moving this paragraph to article 40 it could be believed that "anything" that is created in conformity with the procedure that the FLMN establishes for the OMNs, and is justified by some of the reasons or objectives indicated in article 40 is an OMN, be it or not a technical standard.

    2. Organs that participate in the creation of OMNs

    The National Commission of Normalization19 is an organ created in order to collaborate with the politics of normalization and to coordinate the activities of creation of the norms. The Commission is a very complex organ, according to article 59 of the law20 it requires the participation, from the public sector, the majority of the sub-secretaries (with the exception of those of the Secretary of Interior, Foreign Affairs, Agriculture, Defense and Navy) and by members of the academic, industrial and commercial sectors, by national organisms of normalization and social organizations of the social productive sector; members of diverse specialized institutes of the public sector and of research, and other specialized agencies whose participation is considered pertinent.

    The commission gets together at least every three months. It’s more relevant functions regarding normalization are: to approve the annual program of normalization, to establish rules of coordination among the agencies of the federal public administration and the private organizations for the creation, diffusion and fulfillment of the norms, to propose the creation of norms, to solve discrepancies among the national consultative committees of normalization, and to give an opinion about the accreditation of national organizations of normalization.

    The Commission has a technical secretariat in charge of the Secretary of Economy and a technical council for the exercise of its functions. The first one is authorized to call the Commission to a meeting by request of its president. The presidency rotates every year in the order established by the fraction I of the article 59 of the law.

    The national consultative committees of normalization are organizations whose function is to create OMNs and "promote" its fulfillment. These are constituted for the creation of specific norms and they are formed by members from the public and the private sector. The law, in an attempt to include all the possible interested or affected parties to allow them to take part in the procedure, makes a list that has a limitative effect, when the object was to simply mention some of the possible participants. In consequence, only the persons mentioned in the article 62 of the law are able to take part: the technical personnel of the agencies that for the specific matter are competent, manufacturers’ organizations, the service providing entrepreneurs, the merchants, the agricultural, forest or fishing producers, the centers for scientific or technological investigation, the colleges of professionals and the consumers.

    The National Commission of Normalization and the competent agencies decide about the participation of the private sector, they also decide how the committees that will take part in the activities of international normalization are constituted.

    The committees are regulated by the standards given by the National Commission of Normalization, being grouped by matters or sectors at a national level. The Law prohibits as general rule the existence of more than one committee for each Secretary, but exceptions can be made when they are fully justified before the Commission. The presidency of the committee will be awarded to the agency that has a bigger number of competences concerning the good or regulated service. The resolutions must be taken by consensus, and when this one is not achieved, for majority of votes, which will need of the favorable vote of at least half of the agencies that take part in the procedure and of the president of the commission.

    3. Procedure of creation

    Let us briefly analyze the procedure of creation of the OMNs. The article 38 of the Law determines the competence of the agencies regarding normalization in their respective sphere, the form in which they can participate and the reach of their powers.

    The Secretary of Economy centralizes the coordination for normalization and assumes the functions of organization and control in relation with the OMNs, the article 39 of the Law establishes its competence. Basically it includes the faculties to make the National Program of Normalization, to credit the national organizations of normalization, to issue the OMNs and to organize, coordinate, inform and control the activities related to the normalization.

    The law establishes that it is a faculty of the Secretary of Economy to issue the OMNs within the scope of its competence, and the interior regulation of the above mentioned Secretary, establishes in its article 24, fraction I, that the development, revision, approval, expedition and diffusion of the OMNs and Mexican Norms (MXNs) in the area of its competence, is an attribution of the General Director of Norms. In other words, the delegation that the law does of the legislative function to the Secretary is assigned to a general director by means of an interior regulation. Therefore, it is this one who legislates, exercising a faculty that corresponds to the president of the Republic.

    The National Program of Normalization contains the list of subject matters that need to be regulated and it was conceived as a limit for the power to issue OMNs, MXNs and "norms of reference". The program includes a calendar of tasks that is published in the Diario Oficial de la Federación and has an annual validity. It is a faculty of the National Commission of Normalization to establish the basis of its contents as well as to order the publication of the programs.

    Article 40 of the Law indicates the object that the OMNs can regulate. The so-called finalities are the subjects that can be regulated according to the procedure of the OMNs, and it refers to those specifications or characteristics of products, procedures and services; to those related to information, when there is a risk for the security of the people, a potential damage to the health of humans, animals, or vegetation, the environment in general, the labor environment, or the natural resources.

    Reading article 40 makes evident that the reason of being of the OMNs is to regulate matters with great precision, with the purpose of protecting people’s health, life and the world in which they live. The main concern is to guarantee a risk free activity, avoid abuses and accidents by establishing the minimum conditions of security in the productive and service processes.

    Article 41 signals the minimum content of the OMNs that permits to identify, classify and make them uniform, in such a way that they are given a single form so that they are easily recognizable, which simplifies their comprehension and application by those who are obliged by law to obey them. To include bibliography in the OMNs gives it an informative character and serves as a guide, something rather unusual and inappropriate for a norm in the strict sense of the word, since it deals with references for consultation, not with obligations.

    Part of the success and rationale of the proliferation of OMNs is due to the possibility for individuals to participate with the agencies in its making, in the sphere of their competence or control of the product or activity to which they refer (article 43). The agencies prepare the first proposal of norm and submit it to the national consultative committees of normalization, who design the OMNs’ project, for which they should take into account existing Mexican and international norms and that they have legal recognition in our country, in the terms of international law.

    In addition, they are empowered to submit to the agencies the proposals of other interested persons, given that the law nor its regulation specified in detail this part of the procedure, it can refer to one or several persons, as individual or legal persons, and the interest does not need to be direct, that is, a member of a regulated economic sector; it can simply be someone interested in preserving the environment, health or equality in a generic way (article 44).21

    The addition of May 20, 1997 to article 44, intended to make compatible the existing norms and the ones that were to be issued, with the object to avoid the existence of redundant norms and to deregulate the legal order. The agencies should, therefore, verify if other related norms exist so that a single official norm for a sector or subject matter is made in a joint fashion, taking into account Mexican and international norms.

    Before the reform of 1997, the proposals were submitted with an "analysis", a complex study that was substituted by the Manifest of Regulatory Impact (MRI), that is regulated in the Federal Law of Administrative Procedure (FLAP), with the end not only to sustain the need to issue the OMNs scientifically and economically, but also from the regulatory perspective, given that the MRI should include a succinct explanation of the finality and content of the norm (article 45).

    The Federal Law of Administrative Procedure regulates acts, procedures and resolutions of the centralized federal public administration, with the purpose of making them uniform and to increase the certainty in their making, by giving them the same regulatory frame of reference. In its 1st article, it excludes from its application taxation and financial matters, the responsibilities of the public and electoral servants, agrarian and labor justice, and the acts of the Public Prosecutor (Ministerio Público) in the exercise of its constitutional functions. Regarding economic competence and disloyal practices only article 4 A that refers to the MRI is applicable.

    This type of study should permit the evaluation of the impact that any new provisions or the reforms to those in force could have in the economy. The purpose of the MRI is to evaluate the cost and the effectiveness of the regulatory measures. The Secretary has the power to determine which rules have an incidence in the economic activity, since only these are obliged to submit it. It has also the power to publish a public evaluation regarding the opportunity of the rules analyzed in the MRI, and even if it has no obligatory force, it could evidence the inconvenience of its promulgation and operates as an extra-systematic control, via public opinion.

    The MRI is simultaneously submitted to the Secretary and to the committee; it should provide uniform and rational criteria in order to evaluate the necessity and the opportunity the norms, through the study made according to the manual and the forms that the Secretary provides. However, one of the main problems is the lack of resources and of personal competent to elaborate and evaluate those studies. Especially the cost-benefit analysis, that serves to calculate the direct and indirect costs of the norms, in order to determine their efficiency to solve a certain problem.

    In the case of norms that could have a high impact on the economy, an analysis in monetary terms of the present value of the potential costs and benefits of the proposal and of the considered alternatives should be included. In the case that the analysis is not submitted, it will have to be brought in within the following 15 days to the presentation of the manifest on request of the Secretary or the committee; in this case the time for the formulation of observations is suspended.

    If the Secretary or the committee considers that the analysis presented is not satisfactory, they can ask the competent agency to designate an expert that should be approved by the Secretary and the National Commission of Normalization. To assure the transparency of this procedure, the regulation of the FLMN22 should have determined the criteria that define that designation. The costs of hiring an expert have to be assumed by the agency or the person interested in his appointment. The results of the evaluations of the analysis and the respective commentaries should be given within 60 calendar days after the experts were hired. After that period of time, the calculation of the time for the study of the commentaries and the modifications to the project can begin.

    The rules to make and modify the norms are provided in article 46:

    1) The first proposal is presented directly to the national consultative committee of normalization, who should formulate its observations in a period not longer than 75 calendar days.

    2) The agency responsible for the draft should answer to the observations and do the pertinent modifications to the proposal within a period of 30 calendar days, counted from the date in which they were presented. However, the observations are not binding for the agency and can therefore ask the presidency of the committee to order its publication as a project without modifications in the Diario Oficial de la Federación.

    Once the first part of the procedure is concluded, the proposal of the norm is transformed into a project and should follow the procedure established in article 47:

    3) Once the project is published, those interested may present their comments to the respective consultative committee within a period of 60 calendar days. Within that period, the MRI remains in the committee to the disposition of the public for its consultation.

    4) The committee studies the project, and if it is considered convenient, introduces modifications to the project within a period of 45 calendar days; the modification is optional and can be in the sense of the comments received or in a different one.

    5) The responsible agency should order the publication of the answers to the commentaries received at least 15 calendar days before the publication of the OMN.

    6) Once approved by the respective normalization committee, the competent agency issues the OMN and orders its publication in the Diario Oficial de la Federación.

    It is worth mentioning that, in order to avoid conflicts, article 47 orders that in the cases in which more than one agency is competent, it will be the president of the committee who orders the publication of the OMN.

    4. Validity and obligatory nature of the OMNs

    The general rule, in relation to legal norms, is that they are valid for an indefinite period of time; although, the norms can delimit its temporal validity. The same rule applies for the OMNs, except for emergency norms, whose validity is delimited by the law. Nevertheless, given that the contents of the OMNs are of a technical order, and the specifications and related methodologies are paired to the very dynamic of scientific knowledge, the OMNs should reflect these changes.

    For this reason, there is in article 49 of the Law a mechanism to purge the legal system, that empowers —both the agencies and the National Commission of Normalization and the members of the corresponding national consultative committee of normalization— to propose the derogation of the norm when the causes that motivated it do not subsist, presenting a MRI and following the procedure of elaboration and modification regulated in articles 46 and 47. This provision has been reformed twice, once when derogated and then added to article 51 that established the obligation to follow the procedure of creation of the OMN for their modification or derogation, except for the cases in which new conditions or procedures are regulated or in which stricter specifications are established. It was later added that the proposal of derogation can be made by initiative of the regulated sector or by request of the above-mentioned organs or the Secretary.

    The reform of 1997 established the obligation to adequate the OMNs through their periodic revision every five years, beginning on the date when they entered in force. Within the following 60 days a report to the technical secretary should be sent; if this is not done, the agencies that took part in its making should publish the derogation of the OMNs that have lost their validity. In addition, the obligation to analyze the OMN the following year after it takes effect was established, this in order to determine if its application can be improved or if it should be modified or derogated. The above-mentioned provisions are coherent with the objectives to adequate and deregulate the legal order.

    It is interesting to mention that the law uses the terms "modify" instead of "reform", and to "cancel" the OMN and not of derogating it, even if for practical purposes it is not important, because the legal effects are the same.

    Article 49, after the reform of 1997 permits the substitution of methodologies and procedures established as obligatory in an OMN, when other alternatives comply with the finalities of the norm. The interested parties should present scientific or objective evidence that proves the efficiency of the alternative that they wish to implement. The authorization will be issued, in this case, by the corresponding agency, who will hand it over to the respective committee so that it can issue an opinion. The authorization, once granted, should be published in the Diario Oficial de la Federación, so that anyone interested who finds himself in the same situation can invoke it in their favor. That authorization should safeguard the rights protected in the laws in the matter of industrial property.

    Article 50 establishes the power to ask from any person information and samples for the making of the OMNs; the samples should be returned unless their destruction was necessary. This power more than a duty of collaboration for the manufacturers, importers, service providers, consumers or research centers, has a certain resemblance with the expropriation without indemnity or with an invasion or interference in the information that could be confidential for commercial or scientific effects, or of industrial property. It is because of this that the second paragraph of this article guarantees the destiny of the information and obliges to obtain the authorization of the affected party before it is used in the case that its confidentiality be protected by law. After the reform, the confidentiality of the information will depend on the expressed petition of the interested party, taking advantage in this way of the protection that the law grants in the matter of intellectual property.

    Regarding the observance of the OMNs, the law establishes the obligatory nature of these, making clear that not only will they be applied to products, processes, methods, installations, services or activities in the country, but also to those similar in nature that are to be imported have to comply with them, but the law remains silent with respect to the degree of similarity that they should have.

    With the purpose of verifying the fulfillment of the FLMN and other applicable provisions, article 91 establishes that the competent agencies are empowered to make inspections, and authorizes them to obtain the documents, evidence or necessary samples. The fulfillment of the OMNs should be verified in accredited laboratories, unless these do not exist for the specific measurement or test, in those cases the test may be carried out in other laboratories. The Law establishes that the costs of verification will be at the expense of the inspected person.

    The law, on request of the interested party, authorizes organs called units of verification to verify the fulfillment of the OMNs, in the fields or activities for those that should have been approved by the competent agencies. The reports of the verification units must be accepted by the competent agencies, as well as by the certifying organisms. Based on these reports, the authorities may act in the terms of the FLMN according to their respective attributions.

    The OMNs are also mandatory for foreign products or services; these must possess, before entering the country, the certificate or authorization issued by the competent regulatory agency, or by individuals accredited and approved by the competent agencies. For those cases of products or services not regulated by OMNs, the competent agencies may require the compliance with international standards, either to those of the country of origin, or, in their default, to those of the manufacturers.

    When issuing OMNs, the agencies must, in all cases be careful that the obligations established do not become a non-tariff barrier to commerce, given that this would constitute a violation both to the GATT and the NAFTA;23 but that on the contrary, the established harmonization requirement is met.

    If, as a consequence of the inspection, the non-compliance of the OMNs or the provisions of the FLMN is established, the respective administrative sanctions will be determined as provided by this Law in addition to the sanctions established in other legal provisions. In other words, these will, and may legally, accumulate.

    The applicable sanctions determined by the FLMN consist of: fines; temporary or definitive closure, which may be partial or total; arrest for up to thirty-six hours; suspension or revocation of the corresponding authorization, approbation or registry depending on what corresponds, and suspension or cancellation of the document containing the results of the evaluation of conformity, as well as the authorization of seals and registered trademarks. Following the reforms of May 20, 1997, one article was added, 112 A, with the purpose to define the criteria used to determine the fees.

    For cases of recurrence, the fine established for the above-mentioned violations will be doubled, on condition that in no case shall the total amount exceed the double of the maximum established in the article 112 A.

    Sanctions will be determined based on the minutes taken, on the results of the inspections, on the information displayed by the products, their labels, bottles or packaging, and on the omission of all information that should be displayed, based on the documents issued by the inspection units or based on any other element or circumstance from which it can be deduced an irrefutable infraction to the FLMN.

    In any case, the intention of the action or omission giving rise to the infraction and its effects in relation with the commerce of products or the provision of services shall be taken into account, as well as the damage caused to consumers and the economic situation of the one that committed that infraction. The chapter relative to sanctions intends to respect the guarantee of legality by obliging the sanctioning authority to support and motivate its acts, and to provide a hearing prior to the suspension of the registry, authorization or approval. Nevertheless, it must be emphasized that the sanctions established by the law are extremely severe, particularly if we take into account that in many occasions, the OMNs exceed their competence in the regulated contents.

    One example that we may point out is that of article 57 of the law, which establishes the possibility that the commercialization of a product or service be prohibited, or that its use be forbidden in case of non-compliance with the OMNs. In addition, it establishes an obligation on the mass-communication media to inform the general public about the facts if there is a possibility of risk to health, life or the environment. The specific determination of this obligation should have been specified in the regulation of the FLMN, because it is not clear to which media it refers to, nor the reach of this obligation or who will assume the costs of the diffusion of such information. The Law also obliges producers, manufacturers and importers to recuperate the products and refund the merchants their value; the difficulty in implementing this measure makes evident its poor efficacy.

    The Law cannot leave individuals in a defenseless state against possible arbitrariness in the procedures that lead to the determination of sanctions; for this reason, administrative and jurisdictional remedies are established in the laws. The administrative review procedures provided by the FLMN were derogated by the FLAP, which provides for an administrative review procedure against resolutions that determine the non-compliance of the OMNs and establishes the rules for the procedure.

    VII. THE VOLUNTARY NORMS

    1. Mexican Norms (MXNs)

    The 1961 law regulated norms that were not mandatory; however, the possibility of obtaining an authorization to use the official seal of warranty depended on its compliance, in consequence they could not really be called "optional".

    Among its distinctive characteristics, according to article 42 of the FLMN, voluntary norms, had to comply with less requirements in their mandatory content that the OMNs; however, after the derogation of this provision, they no longer must comply with the requirements provided in article 41. Their creation procedure is not linked to the procedure of the OMNs, but they are limited in terms of their object with respect to the purposes provided by article 40 when there are OMNs regulating a specific subject. For the same reason, national organizations of normalization have the power, not the obligation, to submit to the national consultative committees of normalization the proposal for Mexican norms that they issue according to article 44, second paragraph, of the FLMN.

    In accordance with the Law, the MXNs can be issued by the national organisms of normalization as well as by the Secretary, for a common utilization of rules, specifications, attributes, test methods, directives, characteristics, or standards applicable to a product, process, installation, system, activity, service or method of production or operation, as well as those relative to terminology, symbols, packing, marking or labeling.

    Mexican norms constitute a reference for determining the quality of products and services, particularly with the objective to guide and protect consumers. Article 54 establishes that in no case shall they contain specifications inferior to those established in the OMNs; this is their limit.

    These norms are of voluntary application; however, when a product or service conforms to a MXN, it has to comply with it, particularly for the effects of protecting consumers.24 The Law establishes that in certain cases, the agencies may require their observance and, despite being voluntary, before being issued they must be included in the National Program of Normalization, what limits the power to auto-regulate.

    Its application is determined by the norm itself and it can be national, regional or local. For their creation, international norms must be taken into account, except when these are considered inefficient or inadequate, and they should be based on the consensus of the interested sectors that take part in the committee; in addition, they shall be submitted to public consultation for a period of no less than 60 calendar days previous to their issuance, for which an announcement and extraction must be published in the Diario Oficial de la Federación.

    In the case of voluntary norms, it shall be observed that these do not become elements of unfair competition or barriers to commerce, in detriment of weakly represented members of a certain sector or of those who do not participate in their creation, or who disagree with it even after having taken part in their making.

    The national organisms of normalization are institutions of a private character, whose objective is to issue voluntary norms at the national level. In order to obtain their accreditation, they require previous approval of the competent agency in the field. The Law established minimum obligations of organization and functioning, principally in article 66, to guarantee the participation of all interested sectors in the committees for the creation of Mexican norms and the publicity of the projects.

    Exceptionally, other types of private institutions such as professional groups, firms or associations, may issue voluntary norms such as MXN, for this purpose they must follow the procedure prescribed by the Law, and for informative purposes, the technical secretariat of the National Commission of Normalization must order their publication in the Diario Oficial de la Federación and of the time during which they will be in force. The MXN must also be revised periodically, and if considered necessary, updated every five years.

    The Secretary may issue MXN when they do not exist in a certain field or if it can demonstrate to the National Commission of Normalization that the norms issued by the national organisms of normalization do not represent the interests of the sectors involved. However, the topics must be included in the National Normalization Program even though it must be emphasized that being issued by the Secretary does not make them mandatory, given that this depends on the process of elaboration and not on the organization that issues them.

    2. Auto-regulation

    One topic closely related to the norms is auto-regulation, the option that allows individuals, that is, industry and businesspeople, for example, to establish performance standards that not only respect those provided in the legal order but that also improve them. These mechanisms are a voluntary commitment that allows to surpass or to improve the levels of environmental quality, as far as protection, preservation and improvement are concerned. Auto-regulation is permitted in our legal system in the sense that it is not legally prohibited, and in accordance to the limits that the mandatory regulation establishes, independently of its explicit regulation, as is the case of the General Law of Ecological Balance and Protection of the Environment (GLEBPE).

    The norms issued must comply with the provisions of the FLMN for the Mexican norms regarding their creation in order to achieve uniformity among them. As a lower limit for their content, they have the existing OMNs that must be obeyed, as a maximum limit there is the will of the interested parties, that is, the decisions that the members of a certain industrial sector take in common agreement for example, given that in reality this is a covenant.

    The current trend in our legal order is to provide incentives for individuals to auto-regulate; this is confirmed by the reforms to the FLMN and the GLEBPE, given that the first one aspires to reinforce the implementation of international standards of normalization in our country and to facilitate the plans of creation of voluntary norms. On the side of the GLEBPE, there was an addition of a chapter relative to auto-regulation, based on the reform of December 13, 1996. These norms, as opposed to the OMNs, are not vitiated by material unconstitutionality, given that their justification is found in the will to oblige themselves in the terms that the people who choose to comply with them decide to. In other words, their content needs not be strictly technical, while it is kept within the limits of the norms of the legal order and the obligations and rights it establishes are respected, voluntary norms can regulate any content with any purpose, as long as it is not compulsory regulated in a different fashion.

    The attractiveness of auto-regulation resides in the possibility to obtain administrative or fiscal benefits, in accordance to what is established by the legal order.

    VIII. EMERGENCY NORMS

    The denomination "Emergency OMNs" applies to those norms that have to be issued as a consequence of a situation of emergency. The problem that we encounter in these cases is that of an abuse given the lack of regulation in our legal system of the meaning of the term emergency, since cases have arisen of diverse situations being regulated with an OMN, under the pretext of emergency when the situation really did not justify it.

    In these cases, the creation of the OMN is an exception to the procedure provided by article 47, for the competent agency may elaborate the OMN directly in collaboration with other competent agencies, and order its publication in the Diario Oficial de la Federación, without the presentation of a first proposal, or project; in other words, it will not be submitted to public consultation, nor will there be responses, and it is also exempt of the obligation to present a MRI. For the same reason, the validity of the Emergency OMN is limited to six months, and the OMN may be issued only twice consecutively following this procedure; however, prior to the second publication, a MRI must be presented to the Secretary. Following this period, the OMN looses its validity and ceases consequently to be mandatory. If the agency wants to extend the validity again or make it permanent, it shall do so according to the procedure provided in article 46, and present a first draft to the Consultative Committee of Normalization for the formulation of observations and the response of the responsible agency.

    IX. NORMS OF REFERENCE

    In the chapter relative to national organisms of normalization, there was a provision in article 67 that established the obligation of the agencies of the federal public administration to constitute national committees of normalization to issue norms to acquire, rent or contract products or services, that were called norms of reference, in the sense that they are not obligatory, not only because of the origin of the norm, but also because the obligation to follow the procedure for the creation of an OMN was not foreseen.

    Article 67 was reformed in 1997 and it provides for the issuance of such norms of reference that regulate the rent, acquisition or contracting of products or services on behalf of the federal public administration. The agencies must constitute committees of normalization to issue norms of reference in the cases that the MXN or the international norms are inadequate for meeting the set objectives.

    Their non-mandatory character is reinforced when it remits its regulation to article 51 A, which was also added in 1997 with the purpose to regulate Mexican norms and establish an obligation of coordination between the committees that may have issued related MXNs, with the purpose of updating these with norms of reference.

    As long as the norms of reference are issued, the law allows that the above mentioned acts be celebrated according to the guidelines that the agencies determine; however, they have to be issued in accordance with the National Program of Normalization. On the other hand, article 55 establishes that the products or services related to acts celebrated by agencies of the federal public administration must comply with the OMNs, MXNs, and, in the case that these have not been issued, to international norms.

    X. CONCLUSIONS

    We can conclude that the OMNs are useful tools for regulation; however, they must be issued within a framework of legality and constitutionality, for this, the FLMN should be in accordance with constitutional principles and be reformed to overcome its unconstitutionality, given that the legislator has no competence to attribute to the agencies of the public administration a function that does not correspond to the Congress, for the only one capable of delegating such function would be the Executive Power, if the Constitution authorizes the President to do so.

    This kind of norms has produced more controversy in the practical than in the theoretical field, nevertheless, and even though they have been contested in courts, there is yet not jurisprudence that establishes clearly their legal validity. Some isolated theses have sustained their constitutionality, but have not been able to prove it. The arguments used are contradictory and obscure; they refer in general to the faculty of the Legislate Power to delegate their functions, but do not mention that the regulatory power was not attributed to the Congress. Another sad mistake was the interpretation of article 92 of the Constitution, because the judges confuse the obligation to countersign some legal acts of the President, with a list limiting the regulatory power regulated in article 89, fraction I.25

    The opposition of the OMNs through the jurisdictional procedures is possible because of illegality due to defects in the creation process when non-compliance with a disposition of the FLMN can be proven, as well as because of material unconstitutionality, in the cases in which the contents of the OMNs, have exceeded their object, establish obligations that restrict personal freedom or the estate of individuals, which is guaranteed constitutionally and by the laws of the legal order.

    The OMNs are not only unconstitutional, despite their legality, but also for the same reason, are impeded to establish rules of conduct in their content that imply obligations, rights or permits, and needless to mention, to establish sanctions.

    The solutions that we may come up with are a few: one, as was mentioned before, would be to reform the FLMN; another, to reinterpret, if possible, article 89, fraction I of the Constitution to widen the sense to the provision that refers to "providing in the administrative sphere", and that the jurisprudence, making a systematic and coherent interpretation, establishes clearly the scope of such a power. Article 89, fraction I, could also be reformed to establish explicitly the regulatory faculty, its reach and limits, pointing the type or norms that can be issued and establishing the rules for the delegation of such a faculty. To issue a law that regulates article 89, fraction I of the Constitution, would solve many problems related to the limits and scope of the exercise of the regulatory faculty, but the problem of delegation would subsist.

    Notes
    * Translated by Diana Hernández Holtzman; technical revision by Carla Huerta Ochoa.
    ** Researcher at the Law Research Institute.
    1 One example is article 87, third and fifth paragraphs of the General Law of Ecological Balance and Protection of the Environment (GLEBPE), which establishes the regulation by OMNs of the authorization for the sustainable use of endemic species and for the recollection of species of wild flora and fauna and other biological resources with scientific objectives.
    2 This is the reason of the few bibliographical references that the present article contains, for the few papers that exist are more of the descriptive kind and refer to the content of the OMNs in a specific field.
    3 Adding the regulated times, it takes approximately 230 days, without taking into consideration the possibility that the procedure may be suspended at least 75 days more in the case that the analysis to which article 45 refers to, in its second and third paragraphs, is not presented in a satisfactory way.
    4 Such a distinction was elaborated by Paul Laband, late in the last century in his work Das Staatsrecht des Deutschen Reiches, Stuttgart, Verlag von J. C. B. Mohr, 1901.
    5 This topic will be later explained when dealing with the problem of the constitutionality of the OMNs.
    6 The definition of the legislative function continues to be today an important concern for legal theory, given that the criterion of generality does no longer answer all questions; for this reason, it is believed, that the legislation is fundamentally a procedure.
    7 Not only legal theory but also the jurisprudence has considered that the law is a constitutional limit to the regulatory faculty, since its content and reach is determined by and subordinated to the law; see "Constructions, Regulation of, Federal District, it regulates Urban Development Law and for the same reason it was validly issued by the President of the Republic, in use of his attributions", Semanario Judicial de la Federación, Third Tribunal, 8th epoch, t. II, second part, p. 207.
    8 According to the typology elaborated by Scheuner, legislative mandates are norms that are configured as orders to the legislator to develop a certain constitutional provision, in "Staatszielbestimmungen", Festschrift für Forsthoff, München, 1972, pp. 325 and ff.
    9 Our Constitution provides for the delegation of the legislative function in an explicit way in article 29, so that in case of suspension of the individual guarantees, the Executive may be entitled to issue "emergency laws" in the fields to be determined by the Congress, and with respect to article 131 that allows the Congress to authorize the Executive by law to modify importation and exportation tariffs issued by Congress, as well as to restrict and prohibit the transit of products, articles, and effects in accordance with the limitations that the article itself establishes.
    10 Manuel Aragón questions the validity of the requirement that freedom and property may only be regulated by law, in Perspectivas actuales del derecho, ITAM, Mexico, 1991, p. 40.
    11 Jurisprudence has recognized in several decisions that the exercise of the regulatory power requires the prior existence of a law issued by the legislative organ; in "Construcciones, Reglamento de, del Distrito Federal, reglamenta la Ley del Desarrollo Urbano y por lo mismo fue válidamente expedido por el presidente de la República en uso de sus facultades", Semanario Judicial de la Federación, Third Tribunal, 8th epoch, t. II, first part, p. 207.
    12 This is what the jurisprudence sustains, in the sense that it is not exact that the administrative authorities are entitled to anything as long as the law does not prohibit it, but on the contrary, they only have the powers that the laws expressly gives them, see "Autoridades, facultades de las (tierras ociosas)", Semanario Judicial de la Federación, Second Tribunal, 5th epoch, t. XLIX, p. 793.
    13 The jurisprudence has repeatedly indicated that the public functions cannot be delegated, except when the law provides such exception, see: "Autoridades, facultades de las (tierras ociosas)", Semanario Judicial de la Federación, Second Tribunal, 5th epoch, t. XLIX, p. 793; or "Profesiones. Creación de nuevas carreras que no requieren cédula para su ejercicio", Semanario Judicial de la Federación, Second Tribunal, 6th epoch, t. CXXXIV, p. 61, the Supreme Courts states here clearly, that legislative powers cannot be delegated.
    14 See Otto, Ignacio de, Derecho constitucional. Sistema de fuentes, Ariel, 1987, pp. 88 and ff.
    15 The Federal Law of Protection to the Consumer (FLPC) establishes three cases in which the OMNs exceed their objective: the cases in which they establish the obligation to request an authorization in order to carry out promotions (article 47), determine the cases in which certain products must be give a warranty of a longer validity (article 80), or in the cases when a prior registration before the Procurement of Contract Adhesion can be declared obligatory (article 86).
    16 Such a denomination is used by the law of April 7, 1961; functions that corresponded to the Secretary of Commerce and Industry (SECOFI) when the FLMN was issued, and are currently competence of the Secretary of Economy.
    17 Published in the Diario Oficial de la Federación, July 1, 1992.
    18 Reform published on May 20, 1997, which became enforceable on August 1 of the same year.
    19 The Law of 1961 foresaw the competence of the Secretary of Industry and Commerce for the formulation of norms in collaboration with the consultative committees of norms but it is in the Law of 1988 where, besides the national consultative committees of normalization, the National Commission of Normalization is instituted and integrated in a similar fashion as the current one and which shows the evolution of the institutions that participate in the creation of the OMNs.
    20 Reformed on May 20, 1997.
    21 According to the General Law of Norms, Weights and Measures of 1961, representative members of industrial, commercial and credit organizations, institutes of culture and research centers could participate via the consultative committees of norms, by designation of the Secretary.
    22 The regulation of the FLMN was published in the Diario Oficial de la Federación on January 14, 1999.
    23 Article 904 of NAFTA establishes that the countries have a right to issue norms that they consider necessary to attain legitimate objectives, as long as these do not constitute unnecessary barriers to commerce.
    24 The Federal Law of Protection to the Consumer establishes diverse faculties for the Secretary regarding the expedition of norms, when these are related to consumer protection and the competence is not assigned to other agency by law. The Federal Procurement for the Consumer is the organism responsible for verifying the compliance of OMNs in the terms of the FLMN. The FLPC provides for the existence of a consultative committee for the protection of the consumer, which may give its opinion regarding the projects of OMNs.
    25 Some of these decisions are: tesis aislada P.XII/2002, p. 8, tesis aislada P.XIII/2002, p. 5, tesis aislada P.XIV/2002, p. 9, tesis aislada P.XV/2002, p. 6, April 2002, p. 8, materia constitucional, administrativa, 9th epoch, t. XV, instancia: pleno, Semanario Judicial de la Federación y su Gaceta.

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