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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II ADMINISTRATION ON QUALIFICATIONS CHAPTER III BUSINESS MANAGEMENT CHAPTER IV SUPERVISION AND INSPECTION CHAPTER V LEGAL LIABILITIES CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Provisions are hereby formulated in accordance with the Law of the People's Republic of China on Ports and other relevant laws and regulations for the purpose of regulating the acts of business operation of ports and maintaining the order of business operation of ports. Article 2. The present Provisions shall be applicable to the business operation of ports and the relevant activities. Article 3. The following terms in the present Provisions shall have the following meanings: (1) Business Operation of Ports shall refer to the activities of business operators of port to provide port facilities or services for vessels, passengers and goods within the port areas, which shall mainly include the following items: 1. Providing facilities for vessels including the wharfs, anchorage grounds for lightering, and camels, etc.; 2. Providing facilities and services for passengers to wait for the ship and to embark and disembark£» 3. Providing for consigners services such as loading and unloading of goods (including unloading goods by lightering), storage, lightering within a port, piling up of containers, dismantling and assembling of boxes, and making simple processing and disposal on the packaging of goods, etc.; 4. Providing services such as jacking and pulling for vessels to enter and exit ports, to dock or leave the wharf or to move or berth; 5. Providing tally business service for consigners in their checking of the number of goods and examining of the appearance status of goods in the handing over and taking over of the goods; 6. Providing port services for vessels including supply of shore-end cable, fuels and materials, and necessities of life, transfer of ship's crew, and providing rubbish collection, disposal of ballasting water (including collection of residual oil and sewage), as well as the supply of oil fences, etc.; and 7. Undertaking the business of tenancy and maintenance of port facilities, equipment and port machinery; (2) Business Operators of Port shall refer to the organizations and individuals that have obtained the qualification of a business operator for undertaking the activities of business operation of ports; and (3) Port Facilities shall refer to the constructions or structures built and established for undertaking the business operation of ports. Article 4. The Ministry of Communications shall be responsible for the administration of business operation of ports of the whole country. The competent departments of communications (ports) of the people's governments of the provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the administration of business operation of ports within their own administrative regions. The specific departments for the implementation of administration on ports, which are determined by the people's governments of the provinces, autonomous regions, and municipalities directly under the Central Governments, as well as the people's governments of the cities divided into districts (prefectures) or counties at the locality of the ports shall be responsible for the administration on business operation of ports. The above-mentioned departments in this paragraph shall be called jointly the administrative department of port. Article 5. The state encourages the operational business of ports to be managed by several business operators under fair competition. No business operators of port may conduct any monopoly act. No organization or department may implement regional protection and departmental protection in any form. CHAPTER II ADMINISTRATION ON QUALIFICATIONS Article 6. Whoever intends to engage in the business operation of a port shall apply for obtaining the permit for business operation of port. The principles of fairness, impartiality, publicity and transparency shall be followed when granting the permit for business operation of port. No fees shall be charged, and the granting shall be made under the supervision of the general public. Article 7. The following conditions shall be met for undertaking the business operation of a port (port tally business shall be excluded): (1) Having fixed place of business; (2) Having port facilities and equipment fitting in with the business scope and scale, of which: 1. The wharfs, passenger transport stations, warehouses and freight yards, reserve oil tanks, facilities for sewage disposal, and other fixed facilities shall correspond with the overall planning of the port and the requirements of laws and regulations and the relevant technical standards; 2. Where the operators provide services including embarking or debarking for passengers, they shall have the facilities for waiting for ships and embarking or debarking that can keep out wind, rain, and snow at least; 3. Where a wharf (including anchorage ground for lightering, or camels) provides services for vessels sailing on international navigation lines, it shall have the qualification of an open wharf; and 4. Where an operator is providing wharfs, anchorage ground for lightering, camels, and other facilities, it shall have the corresponding ability to collect the vessel pollutant and the wastes and the corresponding ability for the emergency handling of pollutant, including the necessary establishments, facilities, and equipment; and (3) Having the corresponding professionals and technical personnel and management personnel fitting in with the business scale and scope. Article 8. The following conditions shall be met for undertaking the port tally business: (1) Having organizations, management personnel and tally clerks fitting in with the business scope and scale; (2) Having fixed business places and facilities for business operation; and (3) Having business rules and management systems. Article 9. An operator engaging in the business of loading or unloading of goods in the port and storage shall not engage in the tally business concurrently. A tally business operator shall not engage in the business of loading and unloading of goods and storage concurrently. Article 10. The following corresponding documents and materials shall be submitted when applying for undertaking the business operation of a port: (1) Application letter for the business operation of the port; (2) Composition of management institutions and the certificate of ownership or use right of the houses used for business operation; (3) Acceptance certificate corresponding with the relevant state provisions for completion of construction of fixed facilities such as the ports and wharfs, warehouses, reserve oil tanks, sewage disposal, etc., and documents of approval for the use of coastline of a port; (4) Where a vessel in port operating is used, the ship's certificate of the vessel; (5) Certificate documents of training proving that the main management personnel who are responsible for the work safety have met the requirements of the laws and regulations on work safety; and (6) Other documents and materials proving that the requirements prescribed in Article 7 have been met. Where an operator undertakes port tally business, it/he shall provide the documents prescribed in items (1) and (2) and the name list of tally clerk, and the corresponding certificate documents proving his identity as a tally clerk. Article 11. When applying for undertaking business operation of a port (the application for undertaking port tally business shall be excluded), an applicant shall file an written application (the format is attached below) to the administrative department of port and the relevant documents and materials prescribed in paragraph one of Article 10. The administrative department of port shall, within 30 working days from the date of accepting the application, make decisions on whether to grant the permit or not. If the applicant is qualified, the administrative department of port shall issue the Permit for Business Operation of Port (the format is attached below), and publicize it in the internet or newspapers. Where the applicant is unqualified, the administrative department of port shall not give an administrative license, and shall notify the applicant in writing of the decision on not granting the permit and the reasons thereof. There in the Permit for Business Operation of Port, the kinds of port business permitted shall be specified. Article 12. When applying for undertaking port tally business, an applicant shall file an application in writing to the Ministry of Communications and the relevant documents prescribed in paragraph two of Article 10. The Ministry of Communications may, after receiving the application and the relevant documents, solicit opinions of the competent local departments of communications (ports) and the relevant administrative department of port. The said departments shall propose feedback opinions within 7 working days. The Ministry of Communications shall, within 20 working days from accepting the application of the applicant, make decisions on whether to grant the permit. If it decides to grant the permit, it shall issue the Permit for Business Operation of Port after examination, and publicize it on the website of the Ministry of Communications or the newspapers. If it decides not to grant the permit, it shall notify the applicant in writing and inform the applicant of the reasons thereof. The Ministry of Communications shall, at the time of making decisions on granting the permit, notify the administrative department of port of the relevant ports of the granting of the permit. Article 13. The Ministry of Communications and the administrative department of port shall handle the application of an applicant for making business operation of a port respectively according to the following circumstances: (1) Where there is no necessity to obtain the administrative license according to law for the matter applied for, they shall notify the applicant in time of the fact that they will not accept it; (2) Where the matter applied for does not fall within the scope of power of the Ministry of Communications or the administrative department of port according to law, they shall notify the applicant in time to file an application to the competent administrative departments; (3) Where there are mistakes in the application documents, which can be corrected on site, the applicant shall be permitted to correct them on site; (4) Where the application documents are incomplete or do not correspond with the legal forms, they shall inform the applicant of the whole contents need to be supplemented for once on site or within 5 days. If they fail to inform the applicant exceeding the time limit, it shall be regarded that they have accepted the application at the date of accepting the application documents; and (5) Where the matter applied for falls within the scope of power of the Ministry of Communications or the administrative department of ports, and the application documents are complete and correspond with the legal forms, or the applicant has submitted the entire supplementary application documents required, they shall accept the application for the permit of business operation. Whether the application for the permit of business operation is accepted or not, the said departments shall issue a written certificate which is sealed with the special seal of the licensing department with the date indicated. Article 14. An applicant shall go through the registration for industry and commerce at the administrative department for industry and commerce by the strength of the Permit for Business License of Port checked and issued by the administrative department of port or the Ministry of Communications, and shall undertake port business after obtaining the business license. Article 15. The business operators of port shall undertake activities of business operation of ports within the business scope permitted by the administrative department of port. Article 16. Where a business operator of port alters its/his business scope, it/he shall go through the formalities for license in accordance with the provisions of Articles 11 or 12 of the present Provisions on the alteration items, and go through the registration formalities for alteration accordingly at the department of industry and commerce. Where a business operator of port alters its/his legal representative of the enterprise or the place of business, it/he shall put it on records at the administrative department of ports. Article 17. In case a business operator of port shuts out or goes out of business, it/he shall inform the former licensing department 30 working days in advance. The former licensing department shall take back and write off its/his Permit for Business Operation of Port, and announce to the general public in proper ways. CHAPTER III BUSINESS MANAGEMENT Article 18. The administrative department of port and the relevant departments shall ensure that the public infrastructures of the ports shall be in good condition and unblocked. A business operator of port shall use and maintain the business operational facilities and equipment of the port in accordance with the functions being checked and ratified, and keep them in normal conditions. Article 19. Where a business operator of port alters or rebuilds the wharf, freight yards, warehouses, reserve oil tanks and facilities for sewage and rubbish disposal, it/he shall go through the corresponding formalities in accordance with the provisions of relevant laws, regulations or rules. Where the alteration or rebuilding is not subject to the examination and approval of the administrative departments of ports, the business operator of the port shall put it on records at the administrative departments of ports. Article 20. An operator undertaking the port passenger transport service shall take necessary measures to ensure the safety, rapidness and convenience of the passenger transport, and ensure the supply of the basic necessities of life of the passengers, and keep good conditions and environments for waiting for ships. Article 21. The business operators of port shall arrange in priority for the work on the goods and articles for emergency, those for provision of relief from disasters and those greatly needed in national defense building. Where under the emergency circumstances, the government expropriates port facilities, the business operators of port shall obey the administrative command. The organs arranging for the administrative tasks shall compensate the business operators of port economically according to law accordingly for his/its expenses occurred or losses suffered thereby. Article 22. Under emergency circumstances such as the passengers are held up or the goods are overstocked seriously, and thus causing a jam to a port, the administrative department of port shall take measures to direct the flow of vessels in the port. The people's government of the city or county where the port is located may, when necessary, take direct measures to direct the flow of vessels at the port. The entities, individuals within the port and the vessels or vehicles thereof shall obey the command on directing the flow of vessels at the port. Article 23. The administrative department of port shall make the plan on meeting emergencies from port accidents on dangerous goods which might endanger the public interests, the plan on emergency evacuation and rescue of passengers in case of any major accident on work safety, as well as the plan on preventing natural disasters, set up and improve the system on meeting emergencies from and carrying out rescues for major port accidents on work safety. The administrative department of port shall publicize the various plans they make according to the preceding paragraph, and submit them to and put them on record at the Ministry of Communications and the upper level competent departments of communications (ports). Article 24. The business operators of port shall, according to the relevant laws and regulations as well as the provisions of the Ministry of Communications on work safety of ports, strengthen management on work safety, improve the conditions on work safety, establish and perfect the responsibility system of work safety, and other regulations and systems to ensure the work safety. A business operator of port shall make the plan on meeting emergencies from port accidents on dangerous goods, the plan on emergency evacuation and rescue of passengers in case of any major accident on work safety, as well as the plan on preventing natural disasters of its own entity, and ensure that it/he shall organize to put them into practice. A business operator of port shall submit the various plans, which are made according to the preceding paragraph, to the administrative department of port and the maritime management institutions at its/his locality and put them on records there. Article 25. When engaging in business operation of ports, a business operator of port shall abide by the relevant laws, regulations and the provisions of the regulations of the Ministry of Communications, and perform the duties stipulated in the contract according to law, so as to provide fair and good services to the clients. Article 26. The business operators of port shall abide by the relevant state provisions on price and charges of business operation of ports, and shall publicize the charging items and charging standards for business services in their places of business, and shall use the notes on business operation of ports prescribed by the state. Article 27. No business operators of port shall take illicit means to squeeze out their rivals, or restrict or obstruct fair competition; nor shall they discriminate the target of service that has the equivalent conditions; or force others to accept the port service they provide by any means. Article 28. A business operator of port shall pay the administrative charges of ports timely and fully according to the relevant provisions. The legal rights and interests of a business operator of port shall be subject to the protection of law. No entity or individual may apportion or illegally collect fees from the business operator of port. A business operator of port shall have the right to refuse the various fees charged or apportioned to it/him in violation of provisions. Article 29. The administrative department of port shall do a good job for the administration on the collection of administrative charges of port, and ensure that they shall be collected prescribed, and handed in timely and fully. The administrative charges of ports shall be managed in a special account and used as special funds for special purpose. Article 30. The business operators of port shall provide statistical data and the relevant information on ports according to the facts to the administrative department of port in light of the relevant state provisions. The competent departments of communications (ports) at all levels and the administrative department of port shall submit the statistical data and the relevant information to the Ministry of Communications and the superior competent departments of communications (ports) in light of the relevant provisions, and establish an information system of port management in light of the reality of the local regions. The staff members of the said departments shall keep commercial secrets for the business operators of port. CHAPTER IV SUPERVISION AND INSPECTION Article 31. The administrative department of port shall make supervision over and inspection on the work safety of ports and the implementation of the present Provisions, and shall publicize the result of inspection to the society. The administrative department of port shall make special inspections on the wharfs where passengers embark and disembark densely or where goods are loaded and unloaded in a large quantity, or the wharfs for particular purposes; and shall, when finding any hidden trouble on safety during the inspection, order the person/port under inspection to eliminate it immediately or within a time limit. The competent departments of communications (ports) at various levels shall strengthen supervision over and administration on the implementation of the Law of the People's Republic of China on Ports and the present Provisions by the administrative departments of ports, and faithfully carry out the various systems prescribed by law, and correct the illegal acts in administrative law enforcement in time. Article 32. Where the supervisors and inspectors in the administrative department of port make supervision and inspection according to law, they shall have the right to inquire the entities or the relevant persons under inspection for relevant information, and may consult or copy the relevant documents. The supervisors and inspectors shall keep confidential the commercial secrets they know from inspection. There shall be more than two supervisors and inspectors present when making supervision and inspection, who shall show their certificates for law enforcement. Article 33. The supervisors and inspectors shall make written records on the time, place, contents of the supervision and inspection, the problems found and the settlement thereof, which shall be signed by the supervisors and inspectors and the responsible person of the inspected entity. If the responsible person of the inspected entity refuses to sign on the written records, the supervisors and inspectors shall put the case on record, and report to the administrative departments of ports. Article 34. The inspected entities and the relevant persons shall accept the supervision and inspection carried out by the administrative department of port in accordance with the law, provide the relevant information and documents according to the facts, and shall not refuse the inspection or conceal or falsely report the relevant information and documents. CHAPTER V LEGAL LIABILITIES Article 35. Where any operator has any of the following acts, the administrative department of port shall order it/him to stop the illegal business operation, and confiscate the illegal gains, and impose a fine of over two times up to five times the illegal gains in case the illegal gains are more than RMB 100 thousand Yuan. If the illegal gains are less than 100 thousand Yuan, a fine of 50 thousand Yuan up to 200 thousand Yuan shall be imposed on the operator: (1) Undertaking business operation of a port without obtaining the permit for business operation of port; (2) Operating port tally business without being permitted according to law; or (3) The operator of port tally business undertakes the business of loading and unloading of goods or warehouse business. In case an operator has the act in item (3) of the preceding paragraph, and the circumstance is serious, the Ministry of Communications shall revoke its/his permit for the operation of port tally business, and announce to the society in proper means. Article 36. Where after examination or investigation, there are evidences showing that a business operator of port fails to meet one or several of the provisions of Articles 7 and 8 of the present Provisions after obtaining the permit for business operation, the administrative department of port shall order it/him to stop business operation, and correct within a prescribed time limit. If it/he fails to correct exceeding the time limit, the administrative department who makes the administrative license decision shall suspend the Permit for Business Operation of Port, and announce to the society by proper ways. Article 37. If a business operator of port does not arrange in priority for the work on the goods and articles for emergency, those for provision of relief from disasters and those greatly needed in national defense building, the administrative department of port shall order it to correct, or suspend its Permit for Business Operation of Port if it causes serious consequences, and shall announce to the society by proper ways. Article 38. In case a business operator of port violates the provisions on work safety of Article 24 of the present Provisions, the administrative department of port or other departments that are responsible for the supervision over and administration on work safety according to law shall impose a punishment on it according to law. If the circumstance is serious, the administrative department of port shall suspend its Permit for Business Operation of Port. If a crime is constituted, it shall be prosecuted for criminal liabilities according to law. Article 39. In case a business operator of port violates the provisions of Articles 25 and 26 of the present Provisions, the administrative department of port shall make investigation and assist the relevant departments to handle it. Article 40. Where a business operator of port fails to provide statistical data and the relevant information to the administrative department of port in violation of the provisions of Article 30 of the present Provisions timely and truthfully, the administrative department of port shall impose punishments on it according to the provisions of relevant laws and regulations. Article 41. Where an administrative department of port fails to fulfill duties, and has any of the following acts, an administrative punishment shall be imposed on the directly responsible person in charge and other persons directly liable according to law. If a crime is constituted, the criminal liability shall be prosecuted for according to law: (1) Granting the permit for business operation of port to an applicant failing to satisfy the statutory conditions; (2) Failing to timely suspend the permit of a business operator of port, who has obtained the operational permit but no longer satisfies the statutory conditions for permit; or (3) Failing to perform duties of supervision and inspection according to law, and failing to make investigation, in accordance with the law, on the acts of illegally undertaking business operation of a port, acts not abiding by the provisions on the administration of work safety, the acts endangering the work safety at a port, and other acts in violation of the present Provisions. Article 42. If an administrative department of port illegally interferes in the decision-making right of the business operators of port on management affairs, its superior administrative department or supervisory department shall order it to correct. If it apportions properties from among the business operators of port or illegally charges any fees from them, its superior administrative department or supervisory department shall order it to return such properties and fees. If the circumstance is serious, an administrative punishment shall be imposed upon the directly responsible persons in charge and other persons directly liable according to law. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 43. The administrative departments of port shall submit the rules for ports they formulated in accordance with the Law of the People's Republic of China on Ports and put them on records at the superior competent departments of communications (ports) at the same time of their promulgation. Article 44. The Provisions on the Administration of Shipping Pilotage promulgated by the Ministry of Communications shall be applicable to port pilotage. And the Provisions on the Management of Dangerous Goods at Ports promulgated by the Ministry of Communications shall be followed simultaneously for undertaking the operation of dangerous goods at ports. Article 45. The power to interpret the present Provisions shall remain with the Ministry of Communications. Article 46. The present Provisions shall come into force as of June 1, 2004. |
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