Decree 136-2018 Reforms to the Land Transportation Law

Reform by addition Article 24, adding a fourth, fifth and sixth paragraph; Article 26 adding a third, fourth, fifth, sixth and seventh paragraph of the LAND TRANSPORT LAW OF HONDURAS, contained in Decree No. 155-2015 dated December 17, 2015, published in the Official Gazette "La Gaceta" on March 30, 2016, which shall read as follows:

It is established… As provided… When entered into… Cargo insurance is mandatory and must be contracted by its owner and whoever legally contracts on behalf of such owner, assumes the risks in its handling and transport, when the owner of the cargo or whoever contracts on their behalf, even having insured the same, instructs it to be transported in overweight, over-dimension or without having contracted the transport covering the minimum tariff established in the law or approved by the Institute, when any of the circumstances contained in Article 1100 of the Commercial Code arises, insofar as applicable. When as a result of a loss, the insurance company indemnifies the cargo owner by virtue of a subsisting insurance contract with such owner, insurance institutions shall be the sole entities that may exercise the right of subrogation by virtue of having indemnified an insurance claim. The right of subrogation is exclusive to the Insurance Institution. In the event that the competent authority determines the responsibility of the unit holder or their driver, the latter shall be obligated to repair the damage caused to the cargo owner or contractor, up to the limit of the value of the insurance recovery or deductible paid to the Insurance Company by the contractor thereof. In case of controversies arising from claims derived from insurance policies and transport contracts, related solely to owners of transport units, the laws and courts of the Republic of Honduras shall be competent to hear such controversies.

The Service… It is extended… Non-compliance with the prohibitions on passenger or cargo boarding, established in this Article, shall result, on the part of the Institute through the General Inspectorate of Land Transport, the imposition of a fine of three (3) to five (5) minimum salaries on the owner of the transport unit with which the prohibited action was carried out and, in the case of non-perishable cargo transport, as long as payment is not made effective, the unit shall be retained and may not continue its route and, the cargo owner or the unit holder may, transship the cargo under customs control to another transport unit, which must be registered in Honduras for its transfer to its destination. Equal sanctions and measures shall be applied to the owners of these units in case of overweight and over-dimension detected while circulating in national territory. When the unit has foreign license plates, the sanction and the method contained in this Article shall be applied to the cargo owner. The custody and preservation of the cargo, whether perishable or not, contained in the retained unit, shall be the responsibility of the unit holder, the cargo owner and the driver, the latter having the responsibility to communicate to such holders the retention. If the fine is not paid within a maximum term of three (3) months, by resolution the Institute shall resolve to proceed before the judicial instance to demand the corresponding payment, the document containing the fine and the related resolution being an enforceable instrument and guaranteeing payment preferably with the retained unit, in order to make such payment effective. Notwithstanding the foregoing, insofar as applicable, in perishable cargo and prohibited passenger boarding and the corresponding fine is imposed, the vehicle may continue its route, and must cancel the imposed fine within a term of ten (10) days, without prejudice that recidivism may generate the imposition of the corresponding sanction and the prohibition of entry established in the following paragraph. If there is recidivism in such infractions within a period of one year, in addition to being fined for the same amount and in the same manner, an alert shall be issued to the land customs authorities of the country in order to prohibit, for a period of one (1) year, the entry of the unit with which there has been recidivism, counted from the date of the alert generation.

Reform by addition Article 99 of the LAND TRANSPORT LAW OF HONDURAS, contained in Decree No. 155-2015 dated December 17, 2015, published in the Official Gazette "La Gaceta" on March 30, 2016, adding a third, fourth and fifth paragraph, likewise, add Articles 99-A and 99-B, which shall read as follows:

Repeal in full… Inasmuch as… Non-compliance with what is established in the preceding paragraph, regarding the payment of minimum tariffs contained in Executive Agreements No. 01417 dated November 21, 2011, published in the Official Gazette "La Gaceta" on December 13, 2011 and No. 0466 dated April 26, 2012, published in the Official Gazette "La Gaceta" on July 2, 2013, by the user or intermediary in the contracting of cargo transport services when contracting for amounts less than the minimum tariff, shall be sanctioned with a fine of four (4) minimum salaries corresponding to each freight contracted in non-compliance with the related tariff, without prejudice that the service user must pay the transport operator the full amount of the contract in accordance with what is recognized in the Law or according to the tariff timely adjusted by the Honduran Land Transport Institute (IHTT), which has the authority to do so, as well as to regulate the forms of its application. When it is not possible to determine the responsible party for non-compliance with the payment of the minimum tariff, it shall be presumed that the user who contracted the cargo transport service has incurred in the same, consequently, being their obligation to guarantee compliance with the minimum tariff regulated in this Law and the provisions issued by the Institute in this regard. Recidivism in non-compliance with the payment or collection of the minimum tariff determined by a prior imposed sanction shall result in an aggravated fine of double that imposed in accordance with the third paragraph of this Article, without prejudice, that by incurring in its non-compliance more than two (2) times per year, the sanctioning files shall be remitted to the Directorial Commission, for all legal purposes.

In order to guarantee compliance with the minimum tariffs related in the preceding Article, the Institute at the instance of a party or ex officio, through the General Inspectorate of Land Transport, shall verify or investigate complaints and apply sanctions to those responsible for non-compliance with what is established in this Law, its General Regulations and the normative issued by the Institute in this regard. The verification may be carried out through patrols, surveillance operations, control and supervision on the country's road network or in the company's own facilities, in which case as it operates in other infractions, it may directly impose and execute the same, without prejudice to any challenge or remedies that may lie in law. The user contracting public cargo transport services may not deduct from their tax returns the expenses incurred in the movement of cargo unless they accredit, in addition to the conditions established in the Income Tax Law that arise by virtue of the respective service provision contract, duly registered with the Institute, specifically in the National Registry of Public Specialized and Non-Specialized Cargo Transport Contracts.

Every Public Cargo Transport Service Provision Contract entered into as of the effective date of this reform shall be registered in the National Registry of Public Cargo Transport Contracts maintained for this purpose by the Institute, prior approval that it complies with the minimum conditions it must contain or requiring the transport user its adaptation and execution respecting the same and indicating the contractual inconsistencies in which they incur. For this purpose, the Institute shall make available to the contracting parties a model contract that shall contain the minimum and general conditions of the contracting, without prejudice that this may be adapted by the contractors to the particular nature of the contracted service. For the purposes of its registration, the public cargo transport user or the concessionaire, alternatively to the physical presentation of the contract, may proceed electronically to create their electronic identification on the Transporter or Transport User Portal, which shall have the value of an electronic signature and the system shall be a technological tool of a permanent nature, with which, once registered therein, they shall send their contracts via that method, which, if they meet the minimum requirements, shall be registered, assigning them a nomenclature, generating them an electronic registration certificate and notifying the interested parties of the same. Contractual relationships for public cargo transport service provision entered into prior to the effective date of this reform and where the relationship remains in effect, must formalize such contracting without delay in writing acknowledging its prior contracting date, understood that they must in all cases conform to this normative. Electronic or physical registration is at no cost and must be presented for this purpose within a term of fifteen (15) calendar days after the date of contracting, being, in any case, attributable to the transport user their omission, presentation, formalization or late registration, who shall incur thereby in a fine equivalent to half a minimum salary per transport unit with which the service is provided, subject to the contracting. The Institute shall monthly remit to the Tax Administration Service (SAR) a report of registered contracts for the purposes of verification, inspection or review by that entity. The Transporter or Transport User Portal must comply with the criteria of availability, authenticity, integrity, confidentiality, and conservation of the information it contains and it must be enabled every day of the year during the twenty-four (24) hours of the day. The Directorial Commission of the Institute may issue through an act that it shall publish on its website the regulatory and operational provisions thereof. In contractual relationships of occasional or sporadic public cargo transport service among the contractors, understood that those with intervals between them of one month have this condition, the contractors shall only need to execute the corresponding receipt, the unit driver must carry the same to show it to the corresponding authorities, without prejudice to their formal responsibilities before the Tax entity. This Article shall enter into effect once the platform is built or the technological platform is installed in order to make this provision effective within a term of one hundred twenty (120) days.