Executive Agreement 0528
Congreso Nacional
- Decree: 155-2015
- Published: October 29, 2019
- Issuing body: Congreso Nacional
- Gazette: 35,084
- Category: Commercial
Summary
This agreement establishes the minimum rates that cargo transportation companies must charge in Honduras. Prices vary depending on route distance, vehicle type, and whether it is urban or intercity service, to ensure transporters earn sufficient income while protecting service users.
Considerations
Whereas the national economy is based on the democratic and harmonious coexistence of diverse forms of property and enterprise, in accordance with what is established in article 330 of the Constitution of the Republic.
Whereas the State recognizes, guarantees, and promotes the freedoms of consumption, savings, investment, occupation, initiative, commerce, industry, contracting, enterprise, and any others that emanate from the principles established in the Constitution of the Republic; but the exercise of said freedoms may not be contrary to the social interest nor harmful to public morality, health, or safety.
Whereas the Constitution of the Republic in its articles 332 and 333 establishes that the State, for reasons of public order and social interest, reserves for itself the exercise of certain basic industries, exploitations, and services of public interest, dictating economic, fiscal, and public safety measures and laws, to channel, stimulate, supervise, orient, and supplement private initiative, based on a rational and planned economic policy, having as its foundation the public and social interest and as its limit the rights and freedoms recognized by the Constitution of the Republic.
Whereas the State is the owner of the Public Transportation Service, and therefore must guarantee that it is provided with the highest and best conditions of quality, safety, comfort, efficiency, and economy.
Whereas the Public Administration has as its objective to strengthen the Rule of Law to ensure a politically, economically, and socially just society; to affirm nationality and promote conditions for the full realization of man as a human person within justice, liberty, security, stability, pluralism, peace, representative and participatory democracy, and the common good; in accordance with the principles of decentralization, effectiveness, efficiency, integrity, solidarity, subsidiarity, transparency, and citizen participation, as indicated in article 5 of the General Law of Public Administration.
Whereas the Law for the Defense and Promotion of Competition in its article 4, fourth paragraph, establishes that the exercise of economic activities corresponds primarily to private parties. However, the State, for reasons of public order and social interest, may reserve for itself the exercise of certain basic industries, exploitations, and services of public interest and may enact economic, fiscal, and public safety measures and laws, to channel, stimulate, supervise, orient, and supplement private initiative, based on a rational and planned economic policy.
Whereas the National Congress of the Republic, by means of Legislative Decree No. 155-2015 of December 17, 2015, published on March 30, 2016, put into force the Law of Land Transportation of Honduras; which establishes as the authority in matters of transportation the Honduran Institute of Land Transportation as a Decentralized Entity of the Office of the Secretary of State for Infrastructure and Public Services (INSEP).
Whereas the Law of Land Transportation of Honduras in its article 2 establishes that the primary purpose is to obtain for the users of public and special transportation service the highest and best conditions of quality, safety, comfort, efficiency, economy, and representation, established under the principle of equity with respect to the investment made by the service providers in keeping with the International Treaties on the matter, ratified by the State of Honduras.
Whereas the safety of users of public land transportation, urban and interurban, as well as that of the concessionaires and operators of the transportation units, is of public interest and national priority.
Whereas it must be ensured that the organization and operation of the transportation system complies with the National Plan in relation to transportation policies, in accordance with the general guidelines.
Whereas the Vision of Country 2010-2038, in national objective number 3, denominated "A Honduras that is productive, generates opportunities and employment, and sustainably exploits its resources while reducing environmental vulnerability", establishes a scenario for the year 2038; Honduras will be the leading Central American country in matters of logistics and transportation services, maquilas, tourism, and sustainable use of natural resources, generating energy, food, minerals, and forest sector derivatives, as no other country in the region does. The foregoing in order to achieve Goal 3.2, of raising exports of Goods and Services to 75% of GDP.
Whereas the National Plan 2010-2022, within the eleven (11) strategic guidelines, designates "Productive Infrastructure as the Motor of Economic Activity", establishing transportation as an important means to promote the social development of peoples and the unleashing of the productive potential of nations. Likewise, in the sphere of the Central American region and globalized commercial flows by the year 2022, Honduras, taking advantage of its geographic location, will have made the necessary investments to consolidate its leadership as the most important inter-oceanic land transportation circuit for the transit of merchandise in the Central American Area. The foregoing implies constant investment, renewal, and innovation and the construction of an apparatus of related services with extraordinary possibilities for the country. CONSIDERING: The Public Administration has as its state function to respond to the collective needs of the governed and for that it requires an efficient, unified, uniform, singular, responsible, and subordinate organization and procedure; it is for this reason that the State has the power to set rates to fix the price of the provision of the public service that has been granted through concessions, with national public interest always prevailing.
Whereas the Public Administration shall issue acts subject to the normative hierarchy established in article 7 of the General Law of Public Administration.
Whereas the superior body may take cognizance of matters attributed by law to the competence of an inferior body.
Whereas a concession is the discretionary administrative act by means of which the administrative authority empowers a private party to exploit a public service within the limits and conditions established by law, the legal regime that regulates it, and the relationship between the administration and the concessionaire is governed by public law and is constituted by the set of rules established in the laws, regulations, decrees, circulars, and agreements that fix the conditions of the concession, the concessionaire, and its activity.
Whereas the concession of a public service implies the submission of the concessionaire to the control, regulation, and surveillance of public administration, for the correct development and provision of the service.
Whereas the Law of Land Transportation in its article 48, second paragraph, establishes that the owners of the units must previously execute the Concession Contract to operate the respective service; which must contain the requirements that are approved by regulation.
Whereas the rates of a public service must be just and reasonable, so that the authority that approves them is subject to the principle of justice and reasonableness.
Whereas in the case of concession of public services, it must be allowed that the concessionaire obtains a guarantee of reasonable profitability.
Whereas the spirit and essence of the concession of public transportation service is perfected with the execution of the corresponding concession contract that, for reasons of public order and social interest, has the character of being reserved, both its exercise and its exploitation, in favor of the State, which grants this service to the concession in order to meet a need of the population.
Whereas the State, to avoid unfair competition and to ensure the correct development of the market, may set minimum rates as a negotiation point both for the suppliers, who in this case are the transportation concessionaires, and the users, who are those who demand the transportation service, with the purpose of not incurring in practices of unfair competition nor affecting the market and thus promoting the necessary conditions that provide reasonable profit to the transportation concessionaire and guarantee the constitutional right of free contracting and enterprise to the users, since this is an activity of public order and social interest.
Whereas the Public Administration, with the objective of protecting the public and social interest, sets minimum rates in the Public Transportation Service, with the purpose of generating greater legal certainty by reducing risk, facilitating projections and financial analysis, thereby promoting investment, achieving a balance between investing capital or users of the service and the transportation concessionaires; who through this means provide sustenance to thousands of Honduran families who are benefited.
Whereas article 11, number 5) of the Law of Land Transportation of Honduras attributes to the Directive Commission of Land Transportation the power to approve, modify, and regulate public transportation rates.
Whereas article 66 of the Law of Land Transportation of Honduras establishes that the minimum rate in Cargo Transportation must be set by the Institute, without prejudice to the fact that freight transportation entrepreneurs of this modality may negotiate with the users of the service, values higher than the minimum rate established by the Institute, taking into account the weight of the useful cargo, the distance to be traveled, the conditions of the highway, and other pertinent factors.
Whereas by means of Executive Accord Number 023-2018 dated the sixteenth (16) of April of the year two thousand eighteen (2018), published in the Official Gazette La Gaceta on the twentieth (20) of April of the year two thousand eighteen (2018) in its edition No. 34,620, the Constitutional President of the Republic Attorney Juan Orlando Hernández Alvarado, delegates to the Under-secretariat of General Government Coordination, Licensed Martha Vicenta Doblado Andara, the power to sign the Executive Accords that according to the General Law of Public Administration, are within the power of the Constitutional President of the Republic to sanction, whose content is directed to authorize the legalization of: a) Regulations; b) Contracting of Goods and Services through the Direct Contracting modality according to the assumptions established in the Law of Contracting of the State; c) Authorizations to the General Prosecutor of the Republic to Execute Powers of Express Mention in the claims brought against the State of Honduras; d) Representation Expenses of Officials; e) Loans; f) Budgetary Modifications; and, g) Other administrative acts that the President of the Republic must sign by Law.
Articles
OBJECT: This Regulation, for reasons of public order and public and social interest, and given that the State has reserved for itself the exercise and operation of certain public services, and in this case, land freight transport constitutes a public service of the State that is provided by itself through the Executive Branch or by Honduran natural or legal persons to whom it has expressly authorized by means of an exploitation permit in the manner, conditions, and requirements that the Law and its regulations establish, which is perfected through a contract between the Institute and the Concessionaires; consequently, its object is to fix the minimum rates for the provision of public cargo transport in Honduras, protecting public order and social interest, seeking the continuity of service and financial equilibrium of the public cargo transport service concession, in compliance with what is established in articles 48 and 66 of the Law of Land Transport.
To establish the MINIMUM RATES FOR THE PROVISION OF PUBLIC LAND CARGO TRANSPORT SERVICE, with articulated vehicles composed of a tractor unit or truck tractor and a semi-trailer, from which service users may negotiate values equal to or greater than the minimum rate, in accordance with the following provisions:
- a)
For interurban routes with distances less than or equal to thirty (30) kilometers, operating with a tractor-truck-type vehicle (tractor unit) owned by the concessionaire, coupled to a vehicle without its own traction (semi-trailer) owned by the user, a minimum rate of ONE HUNDRED FIFTEEN DOLLARS (US$ 115.00) is established, for outbound movements, being able to negotiate the return with the same user's cargo, covering the route from the point of origin to the point of destination; payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- b)
For interurban routes with distances less than or equal to thirty (30) kilometers, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the concessionaire, a minimum rate of ONE HUNDRED FIFTEEN DOLLARS (US$ 115.00) is established, increased in accordance with subsection m), for outbound movements, being able to negotiate the return with the same user's cargo, covering the route from the point of origin to the point of destination; payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- c)
For interurban routes with distances greater than thirty (30) kilometers and less than or equal to forty-five (45) kilometers, operating with a tractor-truck-type vehicle (tractor unit) owned by the concessionaire, coupled to a vehicle without its own traction (semi-trailer) owned by the user, a minimum rate of ONE HUNDRED SEVENTY-TWO DOLLARS AND FIFTY CENTS (US$ 172.50) is established, for outbound movements, being able to negotiate the return with the same user's cargo, covering the route from the point of origin to the point of destination; payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- d)
For interurban routes with distances greater than thirty (30) kilometers and less than or equal to forty-five (45) kilometers, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the concessionaire, a minimum rate of ONE HUNDRED SEVENTY-TWO DOLLARS AND FIFTY CENTS (US$ 172.50) is established, increased in accordance with subsection m), for outbound movements, being able to negotiate the return with the same user's cargo, covering the route from the point of origin to the point of destination; payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- e)
For interurban routes with distances greater than forty-five (45) kilometers and less than or equal to ninety (90) kilometers, operating with a tractor-truck-type vehicle (tractor unit) owned by the concessionaire, coupled to a vehicle without its own traction (semi-trailer) owned by the user, a minimum rate of TWO HUNDRED THIRTY DOLLARS (US$ 230.00) is established, for outbound movements, being able to negotiate the return with the same user's cargo, covering the route from the point of origin to the point of destination; payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- f)
For interurban routes with distances greater than forty-five (45) kilometers and less than or equal to ninety (90) kilometers, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the concessionaire, a minimum rate of TWO HUNDRED THIRTY DOLLARS (US$ 230.00) is established, increased in accordance with subsection m), for outbound movements, being able to negotiate the return with the same user's cargo, covering the route from the point of origin to the point of destination; payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- g)
For interurban routes with distances greater than ninety (90) kilometers, operating with a tractor-truck-type vehicle (tractor unit) owned by the concessionaire, coupled to a vehicle without its own traction (semi-trailer) owned by the user, a minimum rate per kilometer traveled of ONE DOLLAR AND TWENTY-FOUR CENTS (US$ 1.24) is established, for outbound and return movements, payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- h)
For interurban routes with distances greater than ninety (90) kilometers, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the concessionaire, a minimum rate per kilometer traveled of ONE DOLLAR AND TWENTY-FOUR CENTS (US$ 1.24) is established, for outbound and return movements, increased in accordance with subsection m), payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- i)
For routes within the urban limits of the city of Tegucigalpa, Municipality of the Central District, operating with a tractor-truck-type vehicle (tractor unit) owned by the concessionaire, coupled to a vehicle without its own traction (semi-trailer) owned by the user, a minimum rate of ONE HUNDRED TWENTY DOLLARS (US$ 120.00) is established, for outbound movements, being able to negotiate the return with the same user's cargo, payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- j)
For routes within the urban limits of the city of Tegucigalpa, Municipality of the Central District, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the concessionaire, a minimum rate of ONE HUNDRED TWENTY DOLLARS (US$ 120.00) or its equivalent in Lempiras is established, increased in accordance with subsection m), for outbound movements, being able to negotiate the return with the same user's cargo, payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- k)
For routes within the urban limits of the remaining cities of the country, operating with a tractor-truck-type vehicle (tractor unit) owned by the concessionaire, coupled to a vehicle without its own traction (semi-trailer) owned by the user, a minimum rate of NINETY DOLLARS (US$ 90.00) is established, for outbound movements, being able to negotiate the return with the same user's cargo, payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
- l)
For routes within the urban limits of the remaining cities of the country, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the concessionaire, a minimum rate of NINETY DOLLARS (US$ 90.00) is established, increased in accordance with subsection m), for outbound movements, being able to negotiate the return with the same user's cargo, payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH); and,
- m)
For the routes comprised in subsections b), d), f), h), j) and l) above, operating with a tractor-truck-type vehicle (tractor unit) coupled to a vehicle without its own traction (semi-trailer), both owned by the carrier, the minimum rates established in the aforementioned subsections shall be increased as follows: I. Ten percent (10%) when coupled to an S1-type vehicle (single-axle semi-trailer); II. Twenty percent (20%) when coupled to an S2-type vehicle (two-axle semi-trailer); and, III. Thirty percent (30%) when coupled to an S3-type vehicle (three-axle semi-trailer). These increases may be paid in dollars or in its equivalent in Lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH). The minimum rates referred to in the foregoing subsections shall not apply if the motor vehicle is rigid, that is, it is not coupled (not articulated), being excluded from the concept of minimum tariffs the following typologies C2, C3, C2-R2, C3-R2, C3-R3.
TOLLS: The total costs of the invoiced value associated with toll payments in public cargo transport must be paid by the user, provided that toll facilities actually exist on the highway section where their cargo travels, with the carrier committing itself to invariably deliver to the user the original and legible proof of payment for the purpose of deducting such additional cost as an expense in their accounting, without prejudice to payment of the corresponding minimum rate depending on the case.
OUTBOUND AND RETURN. It is reiterated that in all cases where the minimum rates set forth in article 2 of this Regulation apply, for economic calculation the quantity of kilometers for outbound and return journeys must be considered, but also taking into account the following circumstances:
- a)
For routes with distances less than or equal to thirty (30) kilometers and urban routes, the user may negotiate the shipment of cargo on the return journey with the same concessionaire, having a time period of four (4) hours following the arrival of the original cargo at its point of destination for loading and unloading. If the return cargo is not loaded within this period, the carrier may return to its place of origin without further responsibility on its part.
- b)
For routes with distances between thirty-one (31) kilometers to forty-five (45) kilometers and urban routes, the user may negotiate the shipment of cargo on the return journey with the same concessionaire, having a time period of six (6) hours following the arrival of the original cargo at its point of destination for loading and unloading. If the return cargo is not loaded within this period, the carrier may return to its place of origin without further responsibility on its part;
- c)
For routes with distances between forty-six (46) kilometers to ninety (90) kilometers and urban routes, the user may negotiate the shipment of cargo on the return journey with the same concessionaire, having a time period of four (4) hours following the arrival of the original cargo at its point of destination for loading and unloading. If the return cargo is not loaded within this period, the carrier may return to its place of origin without further responsibility on its part;
- d)
For routes with distances greater than ninety (90) kilometers up to one hundred fifty (150) kilometers, the user may negotiate the shipment of cargo on the return journey with the same concessionaire, having a time period of four (4) hours following the arrival of the original cargo at its point of destination for loading and unloading. If the return cargo is not loaded within this period, the carrier may return to its place of origin without further responsibility on its part; and,
- e)
For routes with distances greater than one hundred fifty (150) kilometers within Honduran territory, the user may negotiate the shipment of cargo on the return journey with the same concessionaire, having a time period of twenty-four (24) hours following the arrival of the original cargo at its point of destination for loading and unloading. If the return cargo is not loaded within this period, the carrier may return to its place of origin without further responsibility on its part. In the case of cargo transfers outside Honduran territory, the user may negotiate the shipment of cargo on the return journey with the same concessionaire, having a time period of forty-eight (48) hours following the arrival of the original cargo at its point of destination for loading and unloading.
PAYMENT FOR DEMURRAGE. A value of ONE HUNDRED DOLLARS (US$ 100.00) is established, which the concessionaire must charge to whoever contracts for the service for each day of demurrage referred to in the preceding article. This is applicable when the tractor unit and/or the semi-trailer are property of the carrier. The payment for demurrage may be payable in dollars or in its equivalent in lempiras, at the official exchange rate determined on the date of invoicing, in accordance with the Exchange Policy executed by the Central Bank of Honduras (BCH).
The person or commercial company that contracts with a user for the cargo transport service, and stipulates its performance with a third party, concessionaire, for the transfer of goods, must respect and pay the minimum rate established to whoever actually performs the transfer of the cargo.
In accordance with what was approved by the Board of Directors of the Honduran Land Transport Institute (IHTT), through MINUTES NUMBER CD-IHTT-12-2019 dated October 22, 2019, Executive Agreement No. IHTT-002-2019 containing the Special Regulation for Application and Compliance of Minimum Rates in Public Cargo Transport in Honduras is hereby repealed and rendered null and without legal effect, and Executive Agreement No. IHTT-003-2019 containing the Repeal of article 2 of the Special Regulation for Application and Compliance of Minimum Rates in Public Cargo Transport in Honduras and reform of cases 2.1 and 2.2 of said regulation. SECOND: This Agreement shall enter into force as of its publication in the Official Gazette "La Gaceta". Given at the Presidential House, in the city of Tegucigalpa, municipality of the Central District, on the twenty-third (23) day of the month of October of the year two thousand nineteen (2019). LET IT BE COMMUNICATED AND PUBLISHED. MARTHA VICENTA DOBLADO ANDARA SECRETARY OF STATE, BY LAW OF THE SECRETARIAT OF GENERAL GOVERNMENT COORDINATION By delegation of the President of the Republic Executive Agreement No. 023-2018 dated April 16, 2018 published in the Official Gazette "La Gaceta" on April 20, 2018 ROBERTO ANTONIO PINEDA RODRÍGUEZ SECRETARY OF STATE IN THE OFFICES OF INFRASTRUCTURE AND PUBLIC SERVICES (INSEP)
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