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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II REGULATIONS Section 1 Approval of proposal Section 2 Drafting Section 3 Examination Section 4 Deliberation and Promulgation Section 5 Revision and Abrogation Section 6 Interpretations of Ministerial Rules CHAPTER III PUBLIC ANNOUNCEMENT BY THE GAC CHAPTER IV PUBLIC ANNOUNCEMENT BY A CUSTOMS OFFICE DIRECTLY UNDER THE GAC CHAPTER V SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Measures have been formulated on the basis of the Law of the People's Republic of China on Legislation and other relevant administrative regulations of the state by taking the practical situation of the customs into consideration for the purpose of enhancing the regulation of the customs regulatory documents, regulating the formulating procedures, and ensuring the quality of the customs regulatory documents. Article 2. The term "customs regulatory documents" mentioned in the present Measures refers to the documents formulated by the General Administration of Customs (hereafter "GAC") and the customs offices directly under the GAC within their respective authority according to the prescribed procedures concerning the rights and obligations of the counterparts of administrative regulation and having universal binding force, including the ministerial rules formulated by the GAC according to the Regulation on the Rule-making Procedures and the interpretations thereof, the public announcements of the GAC and the customs offices directly under the GAC. The formulation and administration of the documents other than the aforementioned ones shall be governed by the relevant provisions of the GAC and the customs offices directly under the GAC concerning the handling of official documents, with the exception of those involving the provisions concerning the rights and obligations of the counterpart of regulation for which customs regulatory documents shall be formulated according to the present Measures. Article 3. The approval of proposal, drafting, examination, decision, promulgation, putting on archivist files, interpretation, revision, and abrogation, of customs regulatory documents shall be governed by the present Measures. Article 4. The formulation of customs regulatory documents shall be in conformity with the following principles: (1) Conforming with the Constitution, laws, administrative regulations and other superior legislations; (2) Guaranteeing the lawful rights and interests of the counterparts of administrative regulation; (3) Embodying the coincidence of the functions and duties of the customs offices; (4) Scientifically regulating administrative acts and correctly performing the functions of the governments; (5) Being practical and realistic, ensuring that the regulatory documents are practical and manipulative; (6) Ensuring the openness and transparency of the regulatory documents; and (7) Conforming to the requirement of conciseness, uniformity and efficacy. Article 5. The legal affairs institution under the GAC shall be responsible for guiding and supervising the formulation of the nationwide regulatory documents of customs, undertakes the work of planning, drafting, examination, and supervision, of the regulatory documents to be formulated by the GAC, is responsible for the contact, coordination and putting on archivist files with the legislative affairs organ under the National People's Congress and the legal affairs institution under the State Council, and takes charge of the contract with the legal affairs organs of the relevant departments of the state concerning the administration of legislations. The legal affairs organ of the Guangdong branch of the GAC assists the GAC in guiding and coordinating the administration of the customs regulatory documents within the Guangdong area, and exercises supervisory functions under the authorization of the GAC. The legal affairs organs of the customs offices directly under the GAC are responsible for the planning, drafting, examination, coordination, promulgation, and putting on archivist files, of the regulatory documents within their respective jurisdictions. Article 6. Customs regulatory documents shall be subject to the examination of the legal affairs organs of the customs offices before they are promulgated. Article 7. Customs regulatory documents shall be drafted in such a way that they are well-structured, complete in content, standardized in form, well-organized, precise and terse. Article 8. Customs regulatory documents shall be disclosed to the general public by the customs offices through different means, including the internet and bulletin boards. Article 9. The following documents may not be taken as the basis of customs administrative enforcement: (1) Any document that conflicts with any of the superior legislations, including laws, administrative regulations, the ministerial rules of the GAC and the interpretations thereof; (2) Any official document of customs that involves the rights and obligations of the counterpart of administrative regulation for which no rule or public announcement has been made according to relevant provisions; (3) Any customs regulatory document that fails to pass the examination of the legal affairs organs of customs. CHAPTER II REGULATIONS Section 1 Approval of proposal Article 10. With regard to the considerably overall regulation of the administrative regulatory relations within a specific aspect of the customs and if the rights and obligations of the counterpart of regulation are concerned, the GAC shall formulate ministerial rules. Article 11. Ministerial rules shall be formulated by following the procedures of approval of proposal, drafting, consultations, examination of the legal affairs organs, submission for deliberation, examination of the executive meetings, promulgation, etc. Article 12. The GAC adopts the system of legislative year starting on March 1 and ending at the end of February of the next calendar year. Annual legislative plans of the ministerial rules that need to be formulated or revised shall be made according to the legislative year. Annual legislative plans shall be rigidly carried out. It may be readjusted by the legal affairs organs subject to the approval of the head of the customs offices in-charge. Article 13. Where any of the operating divisions of the GAC believes it necessary to formulate or revise any ministerial rule, it shall, before a new legislative year begins, file an application for approval of proposal, and submit it to the legal affairs organ of the GAC. Article 14. The application for approval of proposal for formulating a ministerial rule shall include elements such as the necessity and feasibility of formulating the rule, to key issues to be solved, the current situation, the major institutions to be established and the person-in-charge and drafters of the drafting project, when the draft will be completed, etc. To prepare an application for approval of proposals, the opinions of the departments concerned shall be consulted. Article 15. Where any of the customs directly under the GAC believes it necessary to formulate or revise any ministerial rule, it may, before each new legislative year begins, submit legislative proposals to the legal affairs organ of the GAC, and send a copy concurrently to the operating divisions concerned. The content to be included in a legislative proposal may be referred to those included in an application for approval of proposals. Article 16. The legal affairs organ of the GAC collects and makes coordination to the applications for formulating ministerial rules, and determine the proposals of legislation of the current year as well as the department to take charge of the drafting, make the annual legislative plans of the GAC which shall be enforced after being adopted at the executive meeting through deliberation. Article 17. An annual legislative plan shall include the names of the ministerial rules, the drafting divisions, the persons in-charge, the time of completion, and the time schedule for all stages. Article 18. The legal affairs organ of the GAC is responsible for inspecting, urging and readjusting the implementation of the annual legislative plans. Before the next legislative year begins, the legal affairs organ of the GAC shall review and appraise the implementation of the legislative plan of the preceding year, and report to the leaders of the GAC. With regard to those proposals that have been included in the legislative plan but fail to be completed on schedule, the drafting divisions shall make explanations of the reasons in written form to the legal affairs organ of the GAC, and specify a new time of completion. Section 2 Drafting Article 19. The comprehensive ministerial rules shall be drafted by the legal affairs organ of the GAC or the drafting thereof shall be organized by it. Other ministerial rules shall be drafted by the operating divisions concerned. The ministerial rules that apply to specific regions may be entrusted to the customs offices concerned for drafting. Article 20. The divisions in charge of drafting shall appoint an administration leader to take charge of the drafting, and appoint at least one staff member that is both at home with the customs business and has corresponding knowledge of law to be specifically responsible for the drafting work. Where the drafting of a ministerial rule involves several divisions, a drafting group may be formed by people jointly appointed by the divisions concerned and the major drafting division shall take the lead. Article 21. To draft a ministerial rule, drafters shall make legislative investigations according to the specific circumstances so as to know the problems that exist in practice, study the advanced experiences of both home and abroad, and write investigation reports. Article 22. The ministerial rules that regulate part of or considerably comprehensive administrative regulatory relations of customs shall be referred to "guiding (provisions)", and the ministerial rules that involve considerably specific provisions concerning a certain administrative regulatory relation of customs shall be referred to "banfa (measures)", and the ministerial rules formulated according to superior legislations which are considerably comprehensive, concrete and manipulative shall be referred to "xize (detailed rules of implementation)". Article 23. A ministerial rule shall clearly prescribe the following contents: (1) The purpose and basis of formulation; (2) The scope of application; (3) The organ or division in charge; (4) The principles of management; (5) The specific management measures and work procedures; (6) The rights and obligations of the customs offices and the counterparts of administrative regulation; (7) Legal liabilities; (8) Date of effect; (9) The articles in relevant documents that need revision or abrogation; and (10) Other contents that need to be provided. Article 24. After a ministerial rule is drafted, a consulting version shall be formed so as to consult the opinions of the relevant entities, the divisions concerned within the GAC, the customs offices directly under the GAC, and the counterparts of administrative regulation. The consultations may be done by various ways, including written consultations, symposia, argumentation meetings, hearings, etc. Article 25. In any of the following circumstances, a ministerial rule shall be disclosed to the general public, and, where necessary, hearings may be held: (1) If the personal interests of the counterparts of administrative regulation are involved; or (2) If there are significant discrepancies in the process of consultation. Article 26. To draft a ministerial rule, a drafting statement shall be written. The drafting statement shall include the following elements: (1) The necessity of legislation, including the present situation of regulation, the key problems, etc.; (2) The major basis of legislation; (3) Where any of the existing regulatory documents involved need to be revised or repealed; (4) The process of drafting; (5) The measures of regulation to be adopted and a feasibility analysis; (6) The result of consultations and coordination; or (7) Other issues that have to be addressed. Section 3 Examination Article 27. The ministerial rule to be submitted for examination shall be reported to the legal affairs organ for examination after being signed by the person in-charge of the drafting division. The ministerial rule jointly drafted by several divisions shall be submitted to the legal affairs organ for examination after it is signed by the person in-charge of the drafting divisions. Article 28. The following materials shall be submitted with the ministerial rule to the legal affairs organ for examination: (1) Drafting statement; (2) Background materials of the relevant legislations both home and abroad; (3) Relevant statutory basis; (4) The regulatory documents related to the ministerial rule concerned; (5) The opinions of the various parties concerned; (6) Summary notes of the hearings; (7) Relevant investigation reports; (8) Where it is necessary to formulate corresponding detailed rules for implementation, the major content of the detailed rules for implementation and the proposed time of promulgation of the detailed rules shall be submitted as well; and (9) Other materials required. In particular, the materials mentioned in Items 1, 3, 4, and 5 are compulsory. Article 29. The legal affairs organ shall examine the ministerial rule in the following aspects: (1) Whether it is in conformity with the statutorily prescribed power and procedures; (2) Whether it is in compliance with the principles of legislation; (3) Whether it is coordinated and coherent with other ministerial rules; (4) Whether coordination has already been made to the relevant different opinions; (5) Whether it is feasible; (6) Whether it is desirable in legislative techniques; and (7) Other aspects that need to be examined. Article 30. The legal affairs organ under the GAC may consult the opinions of the various sides concerning the relevant issues of the ministerial rule under examination, and may hold symposia, and hearings. Where it is necessary, it may make further investigations. Article 31. Unless under special circumstances, the legal affairs organ of the GAC shall, within 30 days as of receiving the ministerial rule for examination, propose an examination report, focusing on the relevant legal issues involved in the draft, the disputes found in the process of coordination, the revisions, etc, and on the basis of which come to an examination conclusion. The written examination report signed by the person-in-charge of the legal affairs organ shall be fed back to the drafting divisions. Article 32. In any of the following circumstances, the ministerial rule submitted for examination may be postponed for examination or be returned to the drafting divisions by the legal affairs organ of the GAC: (1) The basic conditions for formulating the ministerial rule are not yet ripe; (2) The drafting divisions fail to discuss with other divisions concerned; (3) The other divisions concerned have disputes over the ministerial rule submitted for examination and such disputes are considerably well-grounded; (4) The materials sent concurrently with the ministerial rule for examination are not complete; (5) The prescribed procedures have not been followed; or (6) Other circumstances under which it is not proper to submit the ministerial rule to the executive meeting for deliberation. If a ministerial rule which has been postponed for examination or returned has been corrected by the drafting divisions and meets the conditions of examination, it may be submitted anew according to the prescribed procedures to the legal affairs organ for examination. Article 33. The drafting divisions shall make revisions to the ministerial rule on the basis of the examination opinions of the legal affairs organ of the GAC and formulate a draft of the ministerial rule. If the legal affairs organ has made important suggestions for revision after examination, it shall discuss with the drafting divisions. Article 34. Where a ministerial needs to be countersigned by the relevant departments of the State Council, the draft of the ministerial shall be submitted to the relevant departments after being examined by the legal affairs organ of the GAC and signed by the head of the GAC. Section 4 Deliberation and Promulgation Article 35. The legal affairs organ of the GAC decides, upon the result of examination, whether it will submit the draft of the ministerial rule to the executive meeting of the GAC for discussion. If it is decided to submit it for discussion, the head of the legal affairs organ of the GAC shall sign a Proposal of Submitting to the Executive Meeting for Deliberation. Article 36. A ministerial rule shall be subject to the decision of the executive meeting after deliberation. When deliberating the draft of a ministerial rule, the person-in-charge of the drafting division shall make a drafting statement concerning the draft of the ministerial rule, and the person-in-charge of the legal affairs organ of the GAC shall make an account of the examination thereof. The drafting statement of a ministerial rule which is drafted by the customs office directly under the GAC upon entrustment may also be made by the operating division that made the entrustment. Article 37. After the draft of a ministerial rule has been adopted in principle at the executive meeting after deliberation, the drafting division shall revise the draft jointly with the legal affairs organ of the GAC according to the comments for revision put forward in the deliberation, and draft an order of the GAC, and shall be promulgated by way of the order of the GAC after being signed by the head of the GAC. In case the draft of a ministerial rule fails to be adopted due to significant principle discrepancies in deliberation, the drafting division shall, according to the demand of the executive meeting of the GAC, make further coordination and discussions jointly with the legal affairs organ of the GAC, the operating divisions concerned and the divisions that have different opinions, formulate a revised draft, and submit to the executive meeting of the GAC for further deliberation. Article 38. The ministerial rules jointly promulgated by the GAC and other departments of the State Council shall, after being adopted in principle at the executive meeting, be subject to countersigning with the joint promulgation departments after being signed by the head of the GAC. The ministerial rules sponsored by other departments of the State Council and subject to the joint promulgation with the GAC shall be signed by the head of the GAC. Article 39. The order of the GAC shall clearly specify the sequence number, name of the ministerial rule, the date when it is adopted at the executive meeting, the abrogation of relevant rules, the day of taking effect, the signature of the head of the GAC, the day of promulgation, etc. The ministerial rules jointly promulgated by the GAC and other departments of the State Council shall be co-signed by the heads of the GAC and the joint formulation departments for promulgation, and the sequence number of the order of the sponsor organ shall be adopted. Unless in special situations, a ministerial rule shall take effect 30 days after being promulgated. Article 40. A ministerial rule shall be published in the Gazette of the GAC after being signed and promulgated. Article 41. Within 30 days after a ministerial rule is promulgated, the legal affairs organ of the GAC shall go through the procedures of putting on the record of the legal affairs of the State Council according to the prescribed procedures and requirements provided in relevant administrative regulations. Article 42. The official text of the ministerial rules shall be those published in the Gazette of the GAC. Article 43. The official translations of the ministerial rules in foreign languages shall be done or be examined and approved by the legal affairs organ of the GAC. Section 5 Revision and Abrogation Article 44. If any of the following circumstances occurs, the ministerial rules concerned shall be revised in good time: (1) Corresponding revisions shall be made due to the revision or abrogation of relevant laws or administrative regulations; (2) Additions or deletions or changes shall be made due to the change of the practical situations; or (3) Other situations that require revisions. The procedures for revising a ministerial rule shall be referred to those for formulating ministerial rules. A ministerial rule shall be repromulgated after being revised, and the original ministerial rule shall be abrogated in writing. Article 45. In case any of the following circumstances occurs, the ministerial rules concerned shall be abrogated in good time: (1) There are no legislative basis any more or no need for further implementation due to the abrogation or revision of relevant laws or administrative regulations; (2) It is not necessary to continue the implementation due to the fact that the implementation of the prescribed matters has been completed or due to the change in practical situations; (3) New ministerial rules has superceded the older ones; or (4) Other situations that require abrogation. Article 46. The ministerial rules that need to be abrogated or that have already lost effect shall be abrogated or declared ineffective in writing by the GAC. Where any new ministerial rule may supercede any old one, the new rule shall consist of a detailed name list, abrogating in writing those that have been superceded. Section 6 Interpretations of Ministerial Rules Article 47. The power to interpret ministerial rules of the GAC shall remain with the GAC. None of the operating divisions of the GAC nor the customs offices directly under the GAC shall be entitled to make interpretations. Article 48. Interpretations may be made to a ministerial rule if: (1) any of the provisions of the ministerial rule needs to be clarified, or (2) new situations have occurred after the ministerial rule is formulated and it is necessary to specify the basis of the ministerial rule. Article 49. The customs offices directly under the GAC may file requests to the GAC for making interpretations concerning ministerial rules, and the GAC may make interpretations concerning ministerial rules on its own initiative. Article 50. The interpretations to the ministerial rules may be drafted by the drafting division original ministerial rule or by the legal affairs organ of the GAC. The interpretations to the ministerial rules shall, after being drafted, be submitted with the drafting statements to the legal affairs organ of the GAC for examination. After being granted consent by the legal affairs organ of the GAC upon examination, they shall be submitted to the executive meeting of the GAC for deliberation and decision, and shall be promulgated by way of an order of the GAC according to the procedures for promulgating ministerial rules. Article 51. The interpretations made by the GAC to a ministerial rule shall have the same force as the corresponding ministerial rule. Article 52. The interpretations made by the GAC upon the authorization of administrative regulations shall be handled by referring to the aforementioned procedures. CHAPTER III PUBLIC ANNOUNCEMENT BY THE GAC Article 53. The GAC may make public announcements both home and abroad of the specific matters concerning the rights and obligations of the counterparts of administrative regulation. The public announcements may not impose any administrative punishment upon the counterparts of administrative regulation. Article 54. A public announcement of the GAC shall, after being drafted, be submitted to the legal affairs organ of the GAC for examination. Article 55. When examining the draft of a public announcement of the GAC, the legal affairs organ shall pay attention to the following aspects: (1) Legitimacy, to wit, whether it includes any content that contradicts with any law, administrative regulation or ministerial rule, and whether it conforms to the prescribed procedures; (2) Openness, or whether the content of the public announcement to be made to the general public is separated from the notice issued within the customs; (3) Standardization, which means whether it is standardized in the form of distribution or diction; (4) Coordination, which means whether it is coordinated or coherent with other regulatory documents; and (5) Other aspects that need to be examined. Article 56. If the legal affairs organ of the GAC has different opinions to the public announcement of the GAC, it shall consult the drafting division. Article 57. After passing the examination of the legal affairs organ of the GAC, the public announcement of the GAC shall be signed by the head of the GAC. Article 58. In case any of the contents promulgated by way of public announcements needs to be revised or abrogated, it shall be promulgated anew by way of public announcement. CHAPTER IV PUBLIC ANNOUNCEMENT BY A CUSTOMS OFFICE DIRECTLY UNDER THE GAC Article 59. The regulatory documents formulated by any of the customs offices directly under the GAC concerning regulation of the administrative relations in a certain aspect within its respective jurisdiction and involving the rights and obligations of the counterparts of regulation shall be disclosed to the general public by way of public announcements, and the corresponding regulatory documents may be attached to the announcement as annexes. Where any of the official documents formulated by any of the customs offices directly under the GAC involves provisions concerning the rights and obligations of the counterparts of regulation, the relevant contents shall be publicized to the general public. Article 60. The customs offices directly under the GAC may not formulate public announcements according to the present Measures unless any of the following circumstances occurs: (1) The situations peculiar to its own jurisdiction are concerned; (2) The concrete manipulative rules formulated according to the regulatory rules of the GAC concerning the rights and obligations of the counterparts of administrative regulation. If anything in the public announcements formulated by any customs office directly under the GAC has not been clarified by the GAC, it shall be subject to the approval of the GAC. Article 61. The public announcements to be formulated by the customs offices directly under the GAC shall be drafted by the legal affairs organ or operating divisions of the customs office concerned. The drafting divisions shall, in the process of drafting, listen to the opinions of all sides, including the relevant entities within the jurisdiction of the customs office concerned and the counterparts of administrative regulation. The consultation of opinions may be done by various ways, including written consultations, symposia, argumentation meetings, etc. Article 62. The operating divisions of the customs office directly under the GAC shall, after finishing the draft of a public announcement, submit it to the legal affairs organ of the same office for examination. The legal affairs organ shall examine the public announcement drafted by the operating divisions of the customs office directly under the GAC by reference to the requirements of the legal affairs organ of the GAC in examining public announcements, and shall present a written examination report. Where it is necessary, it may further consult the opinions of the relevant departments and the counterparts of administrative regulation within the jurisdiction of the customs office concerned. Article 63. Where anything of the public announcements formulated by a customs office directly under the GAC shall be subject to the approval of the GAC or belongs to other important matters, it shall be subject to the decision of the meeting of the customs office or the directors' executive meeting after deliberation. Article 64. A public announcement that has been approved by the GAC shall be publicized to the general public in the name of the customs office directly under the GAC. Article 65. The public announcements formulated by the customs offices directly under the GAC shall be submitted to the GAC for archivist purposes within 5 days after promulgation. Article 66. The customs office directly under the GAC shall, when submitting anything to the GAC for archivist purposes, submit the reports and corresponding public announcements to the legal affairs organ of the GAC in official forms, and shall submit an electronic version thereof according to the relevant provisions which shall be copied to the relevant operating divisions of the GAC. Article 67. The legal affairs organ of the customs office directly under the GAC shall be responsible for putting the public announcements of the customs office concerned in archivist files. The legal affairs organ of the GAC shall inspect and supervise the archivist filing work. Article 68. The legal affairs organ of the GAC shall supervise and examine the public announcements submitted by the customs offices directly under the GAC for archivist purposes, and register those that meet the requirements while refusing to register those that fail to meet the requirements. It may also order the customs office that submits the announcement to get it right or cancel it by itself. Article 69. The legal affairs organ of the GAC shall publish regularly a name list of the public announcements promulgated by the customs offices directly under the GAC that have already been put in archivist files. CHAPTER V SUPPLEMENTARY PROVISIONS Article 70. The procedures provided in the present Measures shall be referred to in the drafting of administrative regulations by the GAC. Article 71. In case any of the regulatory documents is formulated in violation of the present Measures, the GAC may order it be got right within a prescribed time limit and the relevant regulatory documents shall be revoked. It may also, according to the specific situations, circulate public criticisms or administrative punishments to the entities concerned or the persons held responsible. |
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